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Business and Employment Law - PowerPoint Presentation

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Business and Employment Law - PPT Presentation

Lecture 2 Week Beginning 28th January 2019 Barriers to Employment Rights Identifying the Status of Workers Four categories of Workers Employee Statutory workers Self Employed More recently Employee ID: 785114

work contract employment employer contract work employer employment business workers test rights protection employee service pay employees security working

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Slide1

Business and Employment LawLecture 2Week Beginning 28th January 2019

Barriers to Employment Rights

Slide2

Identifying the Status of WorkersFour categories of ‘Workers’EmployeeStatutory workersSelf EmployedMore recently - Employee

Shareholder

Slide3

EmployeeS230 Employment Rights Act (ERA) 1996 defines statusBUT the section itself is confusing which is why it is often left to the Court to decide who is and who is not an ‘employee’Why is this important?Only an employee has full employment protection

Slide4

IDENTIFYING CONTRACT OF EMPLOYMENT [II]: STATUTORY WORKERS.230 (3) (b) ERA 1996

Any other contract (other than a contract of employment) …whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is

not

….that of

a client or customer of any profession or business undertaking

carried on by the individual

Slide5

Implications for WorkersSubordination of the worker created by the desire to change relationship:-Avoid complainingTendency to over work because of a fear of non engagementHigher incidence of work related stressLess job satisfactionLow moraleLess security

Flexibility??

Slide6

EmployeeDoes work personally – cannot ‘turn work down’Enjoys additional ‘protection/perks’ – company carEnjoys all statutory rightsTax is paid at source Employer is vicariously liable

Slide7

WorkersDoes work personallyOften ‘employed’ on casual basisMay be temporary workersMay be zero hours contractTax is paid at sourceNo security of tenureEmployer is vicariously liable

Slide8

EMPLOYEES v. WORKERSEMPLOYEES + WORKERS

EMPLOYEES

ONLY

Equal pay for equal

work

Non discrimination

Right

not to have unauthorised deductions from

pay

S

tatutory

health and safety

rights

Minimum wage

Working

time

regulationsData protection rightsTime off to care for dependantsPart-time workers are protected

R

ight

not to be unfairly

dismissed

R

ight

to redundancy

payment

R

ight

to be given a statement of principal terms and conditions of

employment

Statutory

maternity

pay

Statutory

sick

pay

Security

of employment after maternity

leave

Protection

of the right to belong, or not belong, to a Trade

Union

Time

off rights

Slide9

Self EmployedIn business of their own accountAble to make a profit or loss of their ownMore than one clientProtected from discriminationProtected by Health and Safety LegislationMust keep own accounts

Pay for premises/vehicles

Slide10

Self Employed ….May also be responsible for others as he may sub contract work outProbably a contract for service but will be liable re:DiscriminationHealth and safetyEtcStringfellow Restaurants Ltd v Nadine Quashie [2012] EWCA

Civ

1735

Slide11

EMPLOYEES v. SELF-EMPLOYEDEMPLOYEESSELF-EMPLOYED

Working under a contract

of

service.

Income tax and social security payments deducted by employer.

Vicarious liability of employer.

Extensive duty of care by employer.

Working under a contract

for

services.

Responsible for paying income tax and social security contributions.

No vicarious liability of employment.

Limited duty of care by employer.

Slide12

Employee ShareholdersS31 Growth and Enterprise Act 2013 inserts s205A into the ERA 1996Employee, in return for (minimum of £2000) shares in the business now able to contract out of some employment protection:- gives up the right toRequest study or training leaveFlexible working

Not to be unfairly dismissed

Redundancy payment

Increased notice of intention to return from adoption or maternity leave

Slide13

Employee/ShareholderS31 Growth & Enterprise Act 2013Allows employees to opt out of unfair dismissal protection – minimum £2,000 sharesOpt out of redundancy protectionDoes this defeat the intentions of the ERA?What is the true intention of the employer?

Slide14

Problems with s230 ERA 1996As is evident, courts are often left to decide who is and who is not an employee. Over the years they have developed ‘tests’ to help them Control test – now rather outdatedIntegration Test – also less relevant but still usefulMixed and Multiple test – pulls the other areas together and is generally used today alongsideEconomic Reality Test – what is actually happening in the business – what is the

‘intention’

of the parties?

Slide15

Control TestHow much control does the employer have over the work of the employee? Flexible working/skilled workers – Bramwell LJ – Yewens v Noakes

(1880) ‘A servant is a person subject to the command of his master as to the manner in which he shall do his work’

How realistic is this in 21

st

Century? Does a football manager tell his player

how

to play football or does he rely on the footballer’s skill?

Slide16

Integration of Organisational TestIntegration is a useful test for professional people however,The test is only really useful for permanent or core workers when in fact even outsourced work might be integral to the employer's business.

Slide17

Mixed/Multiple Test Ready Mixed Concrete SE Ltd v Minister of Pensions [1968] 2 QB 497Mackenna J:”A contract of service exists if three conditions are fulfilled”

Slide18

Ready Mix ConcreteThomas Latimer worked for RMC from 1959 to 1963.He took up an opportunity to start to drive lorries on behalf of the company – RMC set up a hire purchase to allow employees to buy their own lorry.His new contract described him as an independent contractor even though he wore company uniform and painted the lorry with company markings.

Slide19

Three conditionsThe servant agrees that, in consideration of a wage ...he will provide his own work and skill in the performance of some service for his masterHe agrees expressly or impliedly... He will be subject to the other’s control The other provisions of the contract are consistent with its being a contract of service

Slide20

Factors the Court will examine will include:Provision of equipment or toolsAbility to work for other people/companiesAbility to control eg does the worker determine when to take holidays or does he need permissionWho markets the work done.

In RMC – they were small business men, able to make a profit or loss of their own

Slide21

What is happening in the Firm?Is there:- Mutuality of ObligationsDoes the individual provide personal service or is he able to substitute his labour?What is actually happening in the firm – what is the intention of the parties, what is the Economic Reality?

Slide22

Other Cases to ConsiderMarket Investigations v Minister for Social Security (1969) 2 QB 173O’Kelly v Trusthouse Forte Ltd (1983) ICR 728

Carmichael v National Power plc (2000) IRLR 43

Lee v Chung and Shun

Shing

(1990) IRLR 236

The Economic Reality Test

Slide23

Status as a Strategic Management ToolAssociated with Risk:An employer will choose the most appropriate “employment” contract to suit the needs of the firm Consider the function of the worker, its importance, the risk to the business if done less well, how easily staff-turn-over can be managed.Core workers – employees

Non core/low skilled - workers

Slide24

Strategic Management ToolThe Employer will structure his business according to his needs.He may use core workers, zero hours contract workers, self employed.He may also use the device of probation periods

Slide25

Agency WorkersAgency WorkersGaining rights in line with employeesSome rights gained from day oneRights to facilities and

amenities

Right to be informed of vacancies

Slide26

Agency WorkersSome rights acquired after 12 WeeksSame basic pay as if they were permanentSame holiday entitlementSame bonus and commission - but only if paid on a personal basis – eg not profit schemesPaid time off for ante natal care