Employment Law in the WorkplaceKaty Morgan SmithAskews Legal

History of employment

Employment law - Invented in the 1960s 1963 “it may be correct to regard the importance of the law in relation to employment law as minimal”

1965 Redundan

cy Payments

Act

Contracts of

Employment Act 1963

1970 Equal

Pay Act

Industrial

Tribunals

Concept of

unfair dismissal 1971

Industrial

Relations Act

1975 Sex Discriminat

ion Act

Anti-discrimination law

Current landscapeEmployment Rights Act 1996Employment TribunalACASEquality Act 2010Transfer of Undertakings (Protection of Employment)WhistleblowingProtection for part-time, fixed-term, agency workersTribunal fees (£160-£950)£74,000 cap

The Employment Relationship

Agreed terms Fair treatment

Trust and confidence Protection and security

A personal contract to

perform work or labour

Employees and workersEmployees only Employees and workers

Unfair dismissal (2 years) National Minimum Wage

Redundancy (2 years) Max 48 hour working week

Right to minimum notice of termination Right to holidays and breaks under WTR

SMP, SPP Right to be accompanied at disciplinary hearings

Implied terms – eg trust and confidence Protection for part-time workers

How can you tell if you are an employee or a worker?CONTROL TEST Who is in charge?

How much control is exerted?

MUTUALITY OF OBLIGATIONS TEST

There have to be duties on both sides – one side to provide work, the other side to perform the work

Hires own staff

Degree of control

exercised

Degree of financial risk

Provides own equipment

Responsibility for investment

and management

Opportunity to make a

profit

Intention of the parties

Business-like set-up

Continuity of person

performing the services

Other clients

Degree of integration into

the business

Able to send substitute

uniform

An employeeo An obligation to provide work personallyo Mutuality of obligation between employer and employeeo An element of control by the person regarded as the employer

Working as a freelancer – the good

• Broad range of experience• Pick and choose when to

work• Choose what work to do • Flexible working hours• Freedom

The bado Stresso Can’t say noo Conflicting priorities / deadlineso Never switch off

And the uglyo No employment rightso No job securityo No sick payo No paid holidayo No right to claim unfair dismissalo No right to a redundancy

paymento No SMP,SPP etc

Working as a freelancer Make sure you have terms and conditions governing the relationship between you and the end user: notice required to end the arrangements payment of invoices right to send a substitute

A basic contract of employment S1 Employment Rights Act 1996

An employer must send a written statement of terms of conditions within 2 months of commencement of employment

Information required by s1ERA1996 Name of employer and employee

Date employment began and date of continuous employment

Place of work

Job title or job description

Scale/rate of pay, intervals/date/method

Notice periods

Holiday entitlement (inlc BHs)

Overtime

Pensions

Working abroad

Collective agreements

Disciplinary & Grievance procedures

Other information

The offer letter The contract of employment The staff handbook

Other places where you might find information about the terms and conditions of your employment

Unfair dismissalTwo years’service

Potentially fair reasons for dismissal Conduct Capability Illegality Redundancy Retirement Some Other Substantial Reason

Conduct

Behaviour Warnings Usually on notice Gross misconduct = one-off, summary dismissal, no notice, immediate effect

Capability

Performance

Competence

Qualifications

Not summary dismissal

Opportunity to improve

Review

Targets set

Illegality RetirementEMPLOYEE CANNOT CONTINUE IN ROLE DUE TO A LEGAL REQUIREMENT

- TEACHER MUST HAVE CRB

- TAXI DRIVER NEEDS DRIVING LICENCE

NATIONAL DEFAULT RETIREMENT AGE = 65

Redundancy

Company closes Branch closes Type of work changes Place of work changes

Some other substantial reason

A mop up There might be any number of reasons why employment just can’t continue Breakdown in relationships is the most common

Procedure Letter setting out the reason for the meeting Hearing Appropriate place Right to be accompanied

Employment Tribunals

Big decline in cases broughtFeesA issue £160 hearing £230B issue £250 hearing £950ACAS early conciliation