Contracts Of Employment 20.10.09.F
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Contracts Of Employment 20.10.09.F

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A copy of my presentation to users of the City Business Library on 20.10.09

A copy of my presentation to users of the City Business Library on 20.10.09

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    Contracts Of Employment 20.10.09.F Contracts Of Employment 20.10.09.F Presentation Transcript

    • Contracts of Employment What you need to know Michael Scutt Dale Langley & Co 60 Lombard Street London EC3V 9EA www.dalelangley.co.uk www.michaelscutt.co.uk
    • 2 (c) Michael Scutt 2009 Definition of Employee • An employee is “an individual who has entered into or works under ... A contract of employment” • S.230(1) Employment Rights Act 1996
    • 3 (c) Michael Scutt 2009 Contracts of employment – what you need to know • What is an Employee? • Why does it matter? • Employees v Workers • Legal Formalities • Statute/Common Law/Implied terms • Disciplinary/Grievance procedures
    • 4 (c) Michael Scutt 2009 Why does it matter? • Different categories of “worker”; • Employees – “mutuality of obligation” • Agency Workers • Casual/Home Workers • Answer: different obligations and legal remedies available
    • 5 (c) Michael Scutt 2009 Employees’ statutory rights • Unfair dismissal • Redundancy • Minimum period of notice • Statutory Maternity Pay/ Stat. Sick Pay • TUPE protection • Apply to employees only • Additionally, an employer can be vicariously liable for an employee’s negligent act
    • 6 (c) Michael Scutt 2009 Workers’ Statutory Rights • Discrimination (sex, race, age, disability, religious belief, sexual orientation) • National Minimum Wage • Working Time Regs (48 hours max) • Right to rest breaks and min. annual holiday (28 days)
    • 7 (c) Michael Scutt 2009 Workers’ Statutory Rights (cont’d) • Whistleblowing • Right to be accompanied at a disciplinary/grievance hearing • All apply to employees as well • None of the above applies to the genuinely self- employed
    • 8 (c) Michael Scutt 2009 Employed v Self-employed • Usual problem is: is the person self-employed? What do Employment Tribunals look at? • Description in job advert • What does job offer letter or contract say? • Tax status of worker – important but not conclusive
    • 9 (c) Michael Scutt 2009 Employed v Self-employed (cont’d) • What happens if the worker can’t perform his duties? • How much does the employer control the worker? • How are similar workers treated? • Who provides the equipment? • Who pays for any professional insurance?
    • 10 (c) Michael Scutt 2009 Example • Joe – telesales operator • Works hours set by employer • Receives (net) pay • Job is done at direction of employer • There is a staff handbook • Disciplinary/Grievance procedures apply
    • 11 (c) Michael Scutt 2009 Case Study 2 • Sue – HR Consultant • Works from own premises • Works for other businesses • Issues invoices for payment • Paid on commission only • Provides own equipment Remember: it is for the “master” to determine whether the “servant” is employed/self- employed
    • 12 (c) Michael Scutt 2009 Camel or Horse? • “If parties agree to create a horse but instead create a camel, the fact that they intended to create a horse and even call what they have created a horse is of little assistance in determining whether it is in fact a horse.” • Levy McCallum Ltd v Middleton EAT [2005]
    • 13 (c) Michael Scutt 2009 Legal Formalities • Contracts of employment not legally required but cf: S.1 ERA 1996 – written statement of terms and conditions to be supplied within two months of employment commencing • http://www.bailii.org/uk/legis/num_act/1996/ ukpga_19960018_en_1.html#pt1-pb1-l1g1
    • 14 (c) Michael Scutt 2009 Legal Formalities cont’d • No free-standing remedy other than a Declaration by ET, but presented with another claim ET can impose two or four weeks’ pay capped at £380 p.w • Immigration, Asylum & Nationality Act 2008 - it is an offence to knowingly employ a person aged 16 yrs or more and who is subject to immigration controls and has not been given leave to enter or remain
    • 15 (c) Michael Scutt 2009 Legal Formalities (cont’d) • All employers must have employers liability insurance – Employers’ Liability (Compulsory Insurance) Act 1969 • UNLESS the only employee is the owner
    • 16 (c) Michael Scutt 2009 Contract terms implied into every employment contract • Mutual duty of trust and confidence • Employer will provide a safe system of work • Employee will take reasonable care of themselves • Employee will obey reasonable instructions • Employee will carry out their duties personally
    • 17 (c) Michael Scutt 2009 Why have a contract of employment? • Notice provisions – extend statutory notice • Mobility/Alternative duties clauses • Right to vary contractual terms • Contract out of WTR (48 hours p.w) • Bonus provisions • Improve SMP/SPP • Reserve right to obtain medical evidence from independent medic • Confidentiality and return of property • Restrictive Covenants
    • 18 (c) Michael Scutt 2009 Disciplinary/Grievance Procedures • Employment Act 2008 • ACAS Code of Practice – www.acas.org.uk • The statutory dispute resolution regulations have been repealed but some cases still caught by them • Three step disciplinary process – investigation/meeting/hearing (right to be accompanied) • 25% uplift/reduction • Doesn’t apply to redundancies/expiration of fixed-term contracts/claims by part-time workers
    • 19 (c) Michael Scutt 2009 Useful Links • www.hmrc.gov.uk/employment-status/index • www.acas.org.uk • www.businesslink.gov.uk • www.dalelangley.co.uk • www.michaelscutt.co.uk • Tel 0207 464 8433 • Twitter = @michaelscutt • michaelscutt@dalelangley.co.uk