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Thursday, 8 June 2017

Introduction to Employment Law

RECAP ON PROCEDURAL DIMENSIONS OF CIVIL LAW
Civil Law
•          Regulates rights & obligations of people dealing with each other
•           Focus on protecting and compensating the victim cf not about punishment
•           Civil courts: County Court / High Court
•          Tribunals: Employment – Immigration
•          Burden of proof:  balance of probabilities (‘he who asserts must prove’)
•           Remedies:  damages, injunctions, specific performance

Contract, tort, property, trusts, family, employment
•           Tort – civil wrong, e.g. trespass, defamation, nuisance, negligence, trespass to the person, land and property.
•           Fault based
•          Strict liability & vicarious liability

Jurisdiction
•          Depends on value of claim / legal complexity of case
•          Eg: > £5000  < £5000
•          County Court: Small Claims Track  or Fast Track  or Multi Track
•          Or High Court

Limitation Periods (Limitation Act 1980)
Depends on cause of action claimed
•          Recovery of land        12 years
•          Recovery of rent arrears      6 years
•          Contract                      6 years
•          Personal injury              3 years
•          Defamation              1 year
•          Human Rights                 1 year
•          Most other torts             6 years
•          Enforcement of judgment       6 years
Unfair dismissal              90 days

Introduction to Employment Law
•          Recognise the relevance of employment law to corporate transactions
•           Appreciate the impacts of European Law
•           Distinguish between employees, workers and independent contractors
•           Understand the basis of claims of unfair, wrongful, constructive and summary   dismissal
•          Understand how redundancy claims arise
•          Awareness of TUPE 2006

Impact of European Law
•          EC legislation has a major influence on UK employment law
•           Equal Treatment Directive  è Sex Discrimination Act
•          Equal Pay Directive è Equal Pay Act
è  Equality Act 2010
•          Acquired Rights Directive è TUPE
•          Working Time Directive 1998

Employees, Independent Contractors and Workers
Important: answer will determine who qualifies for certain employment rights and who does not
Unlawful deduction of earnings
Minimum wage
Sick pay – holiday pay
Itemised pay statements
Unfair dismissal
Redundancy

Independent Contractors
set up business on own account and provide services to others under a contract for services
      No employment relationship with those for whom they
      perform services thus no employment rights linked to the relationship

Employees
•          Work regular hours
•          Tasks set by the employer
•          At a set location
•          For a fixed salary
•          Usual employee benefits
•          Employer to account to HMRC for PAYE and NI

Who is an Employee
•          s.230(1) ERA 1996: working under a contract of employment ie contract of service
•          Not helpful: contract for services v contract of service
•          Courts will look at substance of agreement
Common law tests designed to help assist
Control test
Mutuality of obligations test
Integration test
Economic reality / multiple test

Workers
•          All employees are workers
•          Not all workers are employees
•          Temporary
•          Casual
•          Locums
•          Sub-contractors
•          Consultants
Public Interest Disclosure Act 1998
Working Time Regulations 1998
National Minimum Wage Act 1998 (£5.03 - £6.31 Oct 2013)

Wrongful dismissal
•          e/er dismisses the e/ee in breach of the terms of the employment contract eg. failing to give e/ee proper notice or other breach of contract
•          Court / Tribunal only concerned with whether correct contractual requirements have been complied with
•          Amount of notice required? 
•          Exceptions: serious breach of contract on part of e/ee
    è summary dismissal

Wrongful dismissal
Where would a claim for WD be heard?
è depends on value of claim and damages sought
ET limit of £25000
Limitation
3 months (ET) or 6 Years court
E/ee under duty to mitigate losses
‘PILON’

Unfair Dismissal
•          Available to e/ees only
•          E/ee has a right not to be unfairly dismissed
•          E/ee dismissed – nb: constructive dismissal
•          Qualifying period 1 or 2 years (April 6 2012)
     (Nb exceptions to qualifying period)
•          Did e/ee have a fair reason for the dismissal?
•          Capability
•          Conduct
•          Redundancy
•          Statutory illegality
•          Some other substantial reason
•          Onus lies with the e/er to show dismissal fair

Was the dismissal fair in all circumstances?
Procedures must also be fair
è e/ers often caught out on this point
SEE: ACAS Code of Practice
è Increase any compensatory award by up to 25%
è (not good for the e/er’s bottom line)
è Establish facts of case
è Inform e/ee of problem
è Hold meeting
è Allow e/ee to be accompanied
è Decide on appropriate action
è Provide opportunity to appeal
Consistency – Equitability – Warning procedures -  Offers of training/ retraining – Fair hearings  - Appeals procedures

Remedies
Re-instatement (less than 2%)
Re-engagement (less than 2%)
Compensation (most common element)
Basic award:  è £13500
Compensatory award:  è £74200

Redundancy
Business shut down altogether
Place of business shuts down
Reduction in need for employees (most common)
2 years qualifying period è Statutory redundancy payment
Correct payment + Correct procedure  è No claim against e/er
•          E/er’s reason for redundancy
•          Consultation
•          Selection process:  e/er must use objective criteria and e/ees assessed in accordance with those criteria
•          Offer of suitable alternative employment ef vacancies in other departments
•          Did e/er allow e/ees to appeal the selection for redundancy decision

Other responsibilities of employer
Implied Terms of Employment Contract
Duty to pay wages / other remuneration
Duty of mutual trust and confidence: no humiliation
Duty to provide a grievance procedure
Duty to provide a reference – general principle no duty
Duty to respect employee’s privacy?
Duty of care
Work related stress
Assaults at work
Bullying at work

TUPE Regulations 2006
Protects e/ees where an ‘undertaking ‘ is transferred from one company / person  to another or where there is a service provision change
Transferee becomes the  e/er
Dismissals made in connection with TUPE transfer automatically unfair  unless there is an ETO reason

Changes made to e/ees terms and conditions in connection with TUPE transfer void unless there is an ETO reason

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