By the employer - Dr Peter Jepson

The Employment Relationship PowerPoint presentation produced by Dr Peter Jepson using ‘Employment Law Made Easy’ - which was written by Melanie Slocombe 2004.

This Lecture … • Prior to this lecture you should have read and précised pages 27-57 of ‘Employment Law Made Easy’. • Please raise your hand to ask any question. • Do not chat while I am talking.

What is an employee? • As per s.230 of the Employment Rights Act 1996 an employee is “… an individual who has entered into or works under a contract of employment.” • An employer might be sole trader, partnership, company, unincorporated association, private individual.

General Principles Like all contracts - a contract of employment must have essential elements. These are: • An offer. • An acceptance. • Valuable consideration. • Reasonable certainty as to the terms. • An intention to create legal relations.

The contract of employment Contract can be oral or in writing (or a mixture of both). • It is governed by ‘express’ and ‘implied’ terms. • Employers have a legal duty (as per s.1 of ERA 1996) to issue the employee with a written statement of the main terms and conditions of employment under which they are employed.

Contract of employment • The statement of terms and conditions of employment must be issued within two months of the start of employment. • It is the employers view of employment terms and it is not part of the contract of employment unless both parties have expressly agreed. [A signature related to receipt is not enough.]

What evidence relates to a contract of employment? • • • • •

Job advert Letter offering job Job description Pay slips Contract of employment (if given/agreed) • Statement of particulars of employment.

Statutory rights … • (1) National Minimum Wage = £4.50 per hour over 22 (unless within first six months of employ and under specific training), £3.80 for those 18-21 (inclusive). Those aged 16 and 17 are not entitled to NMW. • For details see www.tiger.gov.uk • How can you complain about low pay?

Statutory rights • Equal opportunities • Itemised pay statements (gross earnings - net pay - fixed and variable deductions). • Equal pay for like work • Maternity rights and benefits Can complain via ET if denied any.

Notice of Termination • Statute lays down minimum notice periods [s.86 ERA 1996] (contract can extend these periods). • By the employer - less than a month = nil period. 1 month to 2 years = one week. 2 to 3 years = two weeks and an additional week for each year of continuous employment up to a maximum of twelve weeks. • By the employee: one week.

Statutory rights • Guarantee payments (if laid off after a months employment and no work is available [must be agreed in advance]). • Redundancy Pay • Healthy and safe working conditions • Sickness benefit (make a note of limitations pages 31-34).

Statutory rights • Remuneration on suspension on medical grounds (s64-65 ERA 1996). • Time-Off (e.g. holidays minimum of 20 days paid leave a year - this can include 8 public holidays). Part-time pro-rata. Workers entitled to pay for each week of statutory leave. Note: Employment contracts are often more generous.

Statutory rights • Provide a list of reasons why an employee may be eligible to time off from work (see pages 34-38 of textbook) - s.50 ERA 1996.

Statutory rights • Protected TUPE rights (TUPE 1981) • Right not be unfairly dismissed (s.94 ERA 1996) • Written reasons for dismissal (s.92 ERA) • Written statement of terms and conditions of employment (s.1 of ERA) [see page 39 of textbook]. • Access to Stakeholder Pensions.

The Sunday Trading Act 1994 • Sunday shop working - if you are employed to work only on a Sunday you do not have these rights. • You cannot be dismissed, selected for redundancy or suffer any detriment for refusing to work on a Sunday. There are rights to opt out of Sunday working (complex so look it up when required)

Types of contract • The majority of contracts are for an indefinite period. • These contracts can be terminated by either party giving notice - the period of which should be specified within the contract. • If it is not, the contract may be terminated upon reasonable notice …

What is reasonable notice? Factors taken into account… • • • • •

The seniority of the employee. The remuneration of the employee The age of the employee The length of service of the employee. What is custom and practice in the trade. What else might an employer consider?

What is reasonable notice? • The contractual notice must not be less than the statutory minimum. What is the statutory minimum notice period?

Fixed Term Contracts • This has a termination date. If there is no notice provision - the contract lasts for the full term of the contract. • A fixed-term contract automatically expires at the end of the term. Failure to renew a fixed-term contract on termination may lead to a valid claim for unfair dismissal or redundancy pay.

Fixed Term Contracts • Fixed-term employees have a right to complain to an ET about an objectively unjustified unfavourable treatment compared to a comparable permanent employee. • Fixed-term employees should have the same rate of pay as comparable permanent staff.

Fixed Term Employees • Should not be discriminated against in areas like redundancy selection. • They should have the same maternity and paternity leave entitlement as are available to permanent employees. • They should have the same training opportunities etc.

Other types of fixed contracts • Contracts for specific tasks (e.g. to build a bridge - sick pay only allowed if contract is for more than 3 months). • Short-term contracts - less than three months so not entitled to statutory sick pay (if extended they are). • Service contracts (e.g. To play football for Chelsea for 5 years).

Part-time contracts Such people have a right not to be treated less favourably than full-time employees doing broadly similar work. Read pages 47 and 48 of ELME and produce a précis of these rights and the employer obligations. Note also the rights of both male and female employees in relation to child care.

Terms of contracts • Express and implied terms. • Express terms are placed in writing. • Implied terms can be implied if it is necessary (for example: the contract may say that you must arrive for 9pm but it can be implied that you are entitled to go home at the end of the day [even if it is not expressed].)

Express & implied terms • The courts will only imply terms if it is necessary (Liverpool City v Irwin confirms it must be ‘necessary’ and not ‘reasonable’ to do so). • However, provided the meaning of express terms are reasonably clear, they will uphold express terms.

Common implied terms • They are too obvious to be recorded • Common practice within the particular business or industry • Necessary to make the contract work • Parties by their behaviour have shown their acceptance of such terms. Can you think of implicit terms?

Unenforceable terms • • • •

To avoid tax. Terms to opt out of statute. Discriminatory terms Restraint of trade (e.g. a footballer will never play for any other club). • Terms which purport to exclude or restrict liability for death or injury.

Variation of contract • An employment contract is an agreement between the parties. It follows that one side cannot unilaterally change a contract. • Thus, any flexibility in terms must be accommodated within the terms of the contract.

Variation of contract • How can flexibility be built into a contract? • If, for example, the contract refers to the Staff Handbook - as issued from time to time - it follows that change is built into the contract via the staff handbook.

Variation of contract • However, even flexible terms must be applied reasonably. • For example, suppose you work in Staines and there is a mobility clause that requires you to work anywhere in the UK. Does that mean you must start tomorrow in Glasgow?

Offering new terms • If an employer offers new terms - the employee can either accept or reject them. • If I am offered a new job of Manager and I accept it by doing it - my action of doing it could be enough to signify acceptance. However, if I write back “I will do it but want more money” the terms remain un-determined.

Offering new terms • If I reject the terms the only other option may be to dismiss me and then offer employment on new terms. • The problem with this approach is that the employer could be seen to be in breach of contract and face unfair dismissal and/or a redundancy claim.

Staff Handbook • Should contain - Equal Opps Policy • Disciplinary Rules and Procedures • Grievance Procedure (now very important) • Health and Safety Policy. See model Staff Handbook on page 62 of ELME.

Use of telephone and email • Employers need to make clear the extent to which they will allow use of telephone calls/emails. Read, précis and discuss the issues raised on pages 53-55 of ELME.

Self-employed • Often referred to as a ‘contract for services’ • Break up into Law Firms - provide a list of issues that distinguish a self employed person from an employed person. • Also, list the practical and legal implications

Read, discuss, present • Break into Law Firms - as per E5 - to discuss and present pages 58-77.