An employment contract is an agreement where a worker provides services in exchange for payment. There are two types of workers - employees and independent contractors. Employees have more legal rights and protections than independent contractors. It is important to distinguish between the two because their legal rights differ. Courts use various tests like control, integration and economic reality to determine if a worker is an employee or contractor. The document then outlines key differences in legal rights and responsibilities between employees and contractors, as well as regulations regarding health and safety in the workplace.
An employment contract is an agreement where a worker provides services in exchange for payment. There are two types of workers - employees and independent contractors. Employees have more legal rights and protections than independent contractors. It is important to distinguish between the two because their legal rights differ. Courts use various tests like control, integration and economic reality to determine if a worker is an employee or contractor. The document then outlines key differences in legal rights and responsibilities between employees and contractors, as well as regulations regarding health and safety in the workplace.
An employment contract is an agreement where a worker provides services in exchange for payment. There are two types of workers - employees and independent contractors. Employees have more legal rights and protections than independent contractors. It is important to distinguish between the two because their legal rights differ. Courts use various tests like control, integration and economic reality to determine if a worker is an employee or contractor. The document then outlines key differences in legal rights and responsibilities between employees and contractors, as well as regulations regarding health and safety in the workplace.
An employment contract is an agreement where a worker provides services in exchange for payment. There are two types of workers - employees and independent contractors. Employees have more legal rights and protections than independent contractors. It is important to distinguish between the two because their legal rights differ. Courts use various tests like control, integration and economic reality to determine if a worker is an employee or contractor. The document then outlines key differences in legal rights and responsibilities between employees and contractors, as well as regulations regarding health and safety in the workplace.
Understand legislation and regulations relating to
health, safety and security in the travel and tourism
sector Employment Contracts An employment contract is one where a party provides their services in terms of work in exchange of consideration which is the pay
It is hence a contract which deals with workers who are generally of two main types; employees (Contract of Service) and self- employed or Independent contractors (Contract for services)
It is essential to make these difference due to the fact that the two types of workers enjoy different rights in law
In case of a conflict, it is generally the court which makes the distinction as a matter of law using tests
Difference between the two in Law Employees differ from self-employed in relation to Tax and National Insurance contribution Common Law rights such as vicarious liability Statutory rights such as those provided in the Employment Rights Act 1996 relating to leave, redundancy, unfair dismissal and the Health and Safety at Work Act 1974 Some statutory rights apply to both such as the Occupiers Liability Act 1957/1984 and the Legislation of discrimination Making the distinction between Employees and Self Employed It is usually the court which decide whether a worker would fall under employees or self employed using three key tests Control test established in the case of Yewens v Noaks 1880 which looks at who control the workers activities Integration test established in the case of Cassidy v Ministry of Health 1951 which looks at whether the workers activities are well integrated to those of the employers main activity Economic reality or multiples test established in the case of Ready Mixed Concreate v Ministry of Pension 1968, where the court looks at who makes the most economic benefit between the worker and the employer to make the decision. In doing this the court looks at a number of factors Key Features of an Employment Contract It is formed in precisely the same ways as a normal contract with all the essential elements of Offer, Acceptance, Intention to create legal relations, Consideration, Capacity and Form all taken into account for the contract to exist The same vitiating factors of misrepresentation, duress or illegality apply here which may prevent the contract from being enforced Just like in normal contracts, the terms could be either express (from the parties and must be communicated within two months) or implied (from law; customs, courts and statutes) Court Implied Terms (Duties Employers) Pay reasonable remuneration
Repay reasonable expenses
Provide a safe place of work
May not provide work if payment is made in full
May not provide a reference however if they do, it must be positive Court Implied Terms (Duties of employees) Fundamental obligation of faithfulness
Obedience of reasonable instructions
Duty of skill and care
Account for employers property
Duty not to delegate to an outsider Statutory Implied Terms for employees in Employment Contracts Employment Rights Act 1996 As amended in 1999, 2002 and 2008 dealing with leave, maternity leave, paternity leave, redundancy pay, notice for dismissal Working Time Regulation 1998 dealing with maximum number of hours for work by an employee The National Minimum Wage Act 1998 which deals with the list that workers get paid per hour of work The Health and Safety at Work Act 1974 which deals with safety and security of employees at the work place Legislation on Discrimination The Health and Safety at Work Act 1974 The broad responsibility of the employers responsibility falls under the following areas To ensure that all systems (work practices) are safe That the work environment is safe and healthy (well lit, warm, ventilated and hygienic) That all plants and equipment must be kept up to the necessary standard Instruction, training and supervision should be directed towards safe working practices and the safety policy communicated to all staff Further rules through EU Directives These directives were phased into UK laws in 1992 and 1998 respectively Some provisions include the fact that the employer has to ; Carry out risk assessment in writing of all work hazards and such assessments should be continuous Introduce controls to reduce risks Share risk hazards with other employers including those in adjoining premises and revise safety policy in the light of such information Employ competent safety and health advisers Employees also have duties to take care of themselves and not to interfere intentionally or recklessly with equipment The workplace (Health, Safety and Welfare) Regulation 1992 Besides requiring that all offices within the EU should be properly ventilated with fresh or purified air, it specifically deal with temperature as well The room temperature should not be less than 16 degree Celsius where people are sitting down or 13 degrees Celsius where they are moving about Windows clean and unobstructed and floors cleaned at least weekly Escalators should function safely and have readily accessible emergency stop devices Sanitary conveniences and washing facilities must be suitable and sufficient An adequate supply of drinking water should be available with suitable drinking vessels Legislation on Discrimination and the Commissions responsible for Regulation Sex Discrimination, Equal Pay Act (EPA) 1970, Sex Discrimination Act (SDA) 1975 dealing with pay and all other grounds respectively (E.O.C) Race Discrimination, Race Relations Act (RRA) 1976 dealing with discrimination on groups of colour, race or nationality (C.R.E) Disability Discrimination, DDA 1995 dealing with mental and physical discrimination (Disabilities Rights Commission, D.R.C) Discrimination on grounds of Religion, Sexual Orientation, Employment Equality (RB) R 2003, EE(SO) Regulation 2003 Discrimination on grounds of Age, EE(Age)R2006 The Human Rights and Equalities Commission (H.R.E.C)now oversees enforcement of the above legislations Termination of employment contracts
Dismissal with notice (Agreement) Fixed Term contracts not renewed (Performance)
Despite no breach, the employee has a statutory right to bring an action for unfair dismissal if job is available
Breach Breach of Employment Contract
Repudiation (rejection of the contract) by employee or the employer
Summary Dismissal where an employee was instantly dismissed without notice
Constructive Dismissal where the employee resigns due to employers breach Actions available on Termination
Wrongful Dismissal (common law) action available for employees who are dismissed without notice
Unfair Dismissal (statute) action available for employees who have been dismissed while their jobs are still available
Redundancy (statute) available for employees dismissed because the job no longer exist Wrongful Dismissal Action for dismissal without notice Brought in a usual court Action to be brought within six years Defendant has defence of gross misconduct Remedies include notice period pay and usual damages
Unfair Dismissal Dismissal where job is still available Action within three months at E. Tribunal Must be employee of ages 18 to 65 years and above with at least a year of service Burden on the employer to prove one of five fair reasons and procedure as prescribed in the Advisory, Conciliation and Arbitration Services (ACAS) code of practice Under the Employment Act 2008, the powers of ACAS has been enhanced in terms of conciliation from the start to end of a case at the Tribunal. Dismissal may be automatically unfair in a number of instances such as pregnancy and trade union membership Remedies for Unfair Dismissal Re-instatement; Being given same job back
Re-engagement; Being given a job of similar ranking to previous job
Compensation which falls under basic and compensatory awards Compensation Basic award is for a maximum of 20 years and a maximum weekly pay of 430. 18 yrs- 21 yrs, half week pay per year of service 22 yrs- 40 yrs, one week pay per year of service 41 yrs- 65 yrs plus, one and a half weeks per year of service Compensatory award of 85,200 except for automatic unfair dismissal which goes beyond Redundancy Dismissal because job no longer exist or the employer cannot continue Action must be brought within six months Must be employee of two year service of ages 18 to 65 and above Notice to be given to employees or their representative and inform the secretary of state if more than 20 are to be made redundant Compensation is based on age and length of service HUMAN RIGHTS LEGISLATION AND ITS EFFECT ON ENGLISH LAW Regulated by the Human Rights Act 1998 to implement the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 41 Member states signed the convention and now make up the Council of Europe The legislation binds public authorities to uphold the rights of persons who could be natural or corporations except there is a legitimate need to derogate from the convention It allows courts to set aside any precedent or past case which is incompatible with the convention and follow previous ECHR cases It requires courts to make a declaration of incompatibility for sections of primary legislations not compatible with provisions of the convention during interpretation and for Parliament to update it It allows courts to declare as void any secondary legislation which is incompatible It require future statutes to be compatible with the convention Its final appellate court is the European Court of Human Rights Assessment on Employment Law and Health and Safety 1. What is an employment contract 2. Give three differences between the two types 3. What is the control test 4. What is the multiples test 5. State two express terms in a employment contract 6. What does the Working time Regulation 1998 deal with 7. State two key points highlighted by the health and Safety at Work Act 1974 8. Where can an unhappy employee bring their case Assessment Cont 9 What was the role of the Equal Opportunities Commission 10 What was the role for Commission for Racial Equality 11 What is the meaning of Genuine Material Difference (GMD) 12 What is Genuine Occupational Qualification (GOQ) 13 Which body is now responsible for enforcing equality laws in the UK? 14 Distinguish wrongful dismissal from unfair dismissal 15 Which action will be sure to give the claimant employee more money, unfair dismissal claim or redundancy claim?