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Employment Law
Part 1 Revision Notes
Employee status
Tribunal jurisdiction- only up to £25,000
...

Rights available to employees only:
•
•
•
•
•
•
•
•
•
•
•
•
•

Rights available to all workers:
•
National minimum wage
•
Protection against unlawful deductions
•
Equal pay
•
Working hours and breaks
•
Holidays
•
Union recognition where majority in favour
•
Not to be refused work on grounds of union
membership
•
Time off for union duties and training
•
Time off for recognised union activities
•
Protection against discrimination
...

Test for determining status: employee or independent contractor
Definition of employee: ‘an individual who has entered into or works under … (or, where the employment has
ceased, worked under) a contract of employment
...
”
Contract OF service= Employee

Contract FOR serviceS= independent contractor/ self-employed

Three tests:
1
...
Integration test- is the person’s job an integral part of the business, or more of an accessory? ‘part and
parcel test’- is the worker involved in administrative duties/ managerial decisions?
3
...
g
...

Some information has to be given in a written statement within 2 months as per s 1 ERA 1996:
• Name of the employer and employee
• Date employment began
• Date on which employee’s continuous employment began
• Scale or rate of remuneration
• Intervals at which remuneration paid
• Terms and conditions relating to hours of work
• Any terms and conditions relating to entitlement to holidays, sickness benefit and pensions
• Length of notice to determine employment
Job title/job description
• Period for which employment is expected to continue
• Place of work
• Any applicable collective agreements
• Details relating to employee working outside UK
• Certain information about disciplinary & grievance procedures
Implied terms:
Employer’s duties:
Duty to pay employee-right to reasonable compensation-either one agreed by contract or at least
minimum wage
Duty to provide work- not if the employee is paid in any event; but there may be an obligation for
piece rate workers where earning capacity depends on working

Duty to indemnify employees- for expenses carried out during work duties
Duty to take reasonable care of the employee’s safety- can get damages, or if serious enough, resign and claim
damages for wrongful repudiation
3 aspects to the duty of care:
•
•
•

Safe employees
Safe place of work
Safe system of work

Sutherland v Hatton - guidance on stress cases:

1
...
The test is the same for all types of work
...

The issue is whether this kind of harm to this particular employee was reasonably foreseeable (i
...
an injury
to health attributable to stress at work)
...

Foreseeability depends on what employer knows or ought reasonably to know about the employee
...

Duty of mutual trust and confidence- Employer must not without reasonable cause act in a way which damages the
relationship of trust and confidence which exists between employer and employee
...
Enough to get damages
...
Usually cannot delegate
...
Once
employment ends, only required t keep trade secrets or highly confidential information
...

2
...

4
...


The nature of the employment;
The nature of the information;
Whether the employer told the employee to regard the information as confidential; and
Whether the information could easily be isolated from other information which the employee was free to

Cannot make lists of existing customers or purposely memorize such a list with the intention of using it after the
employment ends
Post termination covenants include the following:
1
...
Non-solicitation clauses – these prohibit the former employee from soliciting the custom of clients of his former
employer
3
...
Non-poaching clauses – these prohibit the former employee from enticing away his former colleagues
PRIMA FACIE VOID
...
It has a legitimate business interest requiring protection;
2
...
The post-termination covenant goes no further than reasonably necessary (taking into account the nature of
the employee’s employment, exactly who/what is covered by the covenant, the duration of the covenant, and its
geographical scope, where relevant)
...


Wrongful dismissal will release the employee from such covenants
...
g
...
86 ERA 1996::

Employee’s length of service

Employee’s right to notice

Less than 1 month

no notice due

After 1 month

1 week

After 2 years service

2 weeks

After 3 years service

3 weeks

After 4 years service

4 weeks

For each additional year of service

1 additional week’s notice

After 12 years service

12 weeks

BUT
After 13 years service or 30 years still only

12 weeks

Failing to give notice= wrongful dismissal which invalidates post- termination covenants (but not if a PILON clause is
in place)
Repudiatory breach of contract
Means something so serious that it goes to the heart of the contract
Employer in repudiatory breach-> employee can just walk out (wrongful repudiation)- will be entitled to damages
and still not bound by post-termination covenants
...
Is there a repudiatory breach (one serious act or series of smaller incidents)?
2
...
Did the employee resign promptly?

Employee in repudiatory breach-> employer doesn’t need to give notice (summary dismissal) for things such as
dishonesty, intoxication, fighting, disclosing confidential information, industrial action
...

Cerberus Software Ltd v Rowley [2001] IRLR 160

The PILON clause stated that the employer:

“MAY make a payment in lieu of notice to the employee”
...


In Abrahams, it simply stated a PILON will be paid thus making it a simple debt claim with no need for mitigation
...


Part 2 Revision Notes
Unfair dismissal
Step 1- Does the employee qualify for the right?
•
•

Are they an employee? Refer to previous tests: Control, Integration, Multiple
Have they worked continuously for 2 years?

Step 2- Has there been a dismissal?
S 95 ERA 1996- on of three ways:
a)

Direct dismissal-employer terminates- with or without notice
...
g
...
by reason of the employers conduct
...
The size and administrative resources of the employer’s undertaking will be relevant in
making the assessment
...
Misconduct
The following may amount to misconduct:
•
•
•
•
•

refusal to obey a lawful order and reasonable instruction
dishonesty
damage to company property
fighting, drunkenness
sexual, racial harassment/bullying

THE EMPLOYER MUST SHOW: That he followed a fair procedure (including the Code) & That the sanction was
appropriate
Reasonableness test: BHS v Burchell- the employer must establish:
•
the fact of belief in the guilt of the employee
•
that the employer had reasonable grounds upon which to base that belief
•
that the employer formed those beliefs after as much investigation into the matter as was reasonable in the
circumstances of the case
...
Capability

Capability means capability assessed by reference to skills, aptitude, health or any other physical or mental quality
...

It may also cover long term sickness, where the employee becomes incapable of doing the job, through ill health
...
Appraisals- let them know they are failing to meet the required standards
2
...
Give reasonable time to improve
4
...
Alternative employment- other stuff they may do before dismissal
For capability and sickness dismissals:
Objective criteria will include:a)
b)
c)
d)

medical opinions and consultation with the employee
the employee’s past and possible future record
the likely duration of the illness
the status of the employee
3
...
To avoid contravention of any enactment- e
...
losing a drivers licence
5
...

b)
Personality clashes either with work colleagues or possibly with clients
...


Step 4- Was there a fair procedure?
PART 1- ACAS code
Employer must show evidence to support an intention to dismiss
...

The key elements are:
•
•
•
•
•
•
•
•
•

Different people should carry out the investigation, disciplinary and appeals stages
...

Suspensions should be kept as short as possible, making clear that the suspension is not in
itself a punishment
...

The employee should be informed of his/her right to be accompanied
The employee should be given sufficient detail of the case against him to allow him to prepare a
response
...

The employer should avoid unreasonable delay
There should be written notification of the outcome of the meeting
...

Invite the employee to a disciplinary meeting- according to the code, e
...
right to be accompanied
II
...

Decide on appropriate action-and inform them in writing
IV
...

Was the reason relied upon by the employer, in dismissing reasonable?
2
...
The question is did the employer act reasonably by reference to The range of reasonable
responses
...

2
...

4
...


The size and administrative resources of the employer
...

Consistency
...

Reason for dismissal

Step 5- What remedies are available?
Reinstatement and re-engagement
Compensation:
Basic Award- s 119 ERA:
Age factor x length of service (max 20 years) x maximum gross pay (£525)
Age band/factors:
Age 41 and over - employee is entitled to 1½ weeks pay
...

Aged below 22 - employee is entitled to ½ weeks pay
...


The award is calculated under the following heads:
i)
Net loss suffered to the date of hearing - often this will include wages for the notice
period
...
This may be easy to quantify if the employee has found another job but if he hasn't then the
tribunal will have to estimate the length of time he will be unemployed
...

iii)
Loss of statutory rights - this is usually a modest sum of about £200- £350
iv)
Loss of pension rights, and any other benefits such as cars
...

ii)
Where otherwise it is just and equitable - this may cover the case where the reason for the unfairness was a
technicality but for which the dismissal would have been fair- i
...
a Polkey reduction
...

iii)
If the employer has made a gratuitous payment or made a payment in lieu of notice
...

The statutory maximum for the compensatory award is CURRENTLY capped at the lower of either £86,444 or 52
weeks actual gross pay
...
( tribunal can reduce the award by a % to reflect the
fact that the employee by his conduct has brought the dismissal on himself)
2)
Where the employee has unreasonably refused an offer of reinstatement
...

This means that if there has been any procedural failure in the dismissal (i
...
failure to comply with a company policy
or failure to comply with the ACAS Code), the dismissal will be technically unfair thus entitling the employee to
compensation is not very deserving circumstances in terms of substantive fairness
...
e
...

Part 3 Revision Notes
Employment SGS 3 ILS C Revision
Step 1: What is Redundancy in general terms?
Redundancy is effectively when an employee becomes surplus to the requirements of the job
...

Therefore, the payment is effectively compensation for the loss of the employee’s job, rather than compensation for
future losses or money to tide the employee over until he gets another job
...
135 ERA 1996
Be continuously employed for at least 2 years as per S
...
164 ERA 1996

Step 3: There needs to be a dismissal for redundancy
•
•
•
•
•
•

Termination with or without notice
Expiry of a fixed term contract that is not renewed
Constructive dismissal
Resignation of an employee under notice of dismissal by reason of redundancy
Termination by operation of law
Voluntary redundancy – inducements by employer but facts are crucial

Step 4: Legal definition of redundancy
Under S
...
g
...


Essentially, need fewer to do the job
...

The business disappears
Business is defined widely and includes any trade or profession or any activity carried on by a body of persons
...

Disappearing workplace
The question here is where exactly is the workplace? Geographical/factual or contract test? These tests are now
obsolete in light of the case law below
...
Both tests are now
obsolete
...
The important element is to look at the requirement of the business for employees
...
Examples where this may apply are; changing the product, replacing old skills with new, rationalisation using
computerisation and modernisation
...
The employer simply needs to show that there is a need for
fewer employees
...
98(4) ERA 1996
...


Step 5 Continued: The ACAS Code does not apply but should still be followed:
In an individual redundancy scenario, for example, the process should include providing written notification to the
employee, in advance of a meeting, informing them they are at risk of redundancy, having ideally at least 2 individual
consultation meetings and considering suitable alternative employment
...


ii)

The numbers and descriptions of employees whom it is proposed to dismiss as redundant
...


iv)

The proposed method of selecting the employees who may be dismissed
...


vi)

The proposed method of calculating the amount of any redundancy payments to be made
...


whether groups of employees were doing similar work

2
...


whether having established the pool, it was agreed with the union (if appropriate)

The selection criteria should be objective as far as possible and may include, e
...
absence, time keeping, dexterity,
aptitude, flexibility
...


Step 7: Offer of new employment under S
...

N
...


there is no compensatory award with redundancy
...
He earns 66
...


Part 4 Revision Notes
Discrimination
(more general; gender etc)
1
...
Was there an unlawful Act:
S 39- 1) An employer (A) must not discriminate against a person (B)—
(2)An employer (A) must not discriminate against an employee of A's (B)—
(3)An employer (A) must not victimise a person (B)—
(4)An employer (A) must not victimise an employee of A's (B)—

3
...
Direct Discrimination:
S 13- (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less
favourably than A treats or would treat others
You need to apply a hypothetical comparator as per s 23- (1) On a comparison of cases for the purposes of section
13, 14, or 19 there must be no material difference between the circumstances relating to each case
...

An example: Jack and Rebecca have the same qualifications
...
Jack gets asked
job-related questions, while Rebecca is asked about her personal life, her plans of starting a family
...

Something to note is that there does not need to be a real comparator, just how would they treat another
...
g
...
Indirect discrimination:
S19- ( 1)A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is
discriminatory in relation to a relevant protected characteristic of B's
...

Essentially- this is a provision, criterion or practice that technically applies to everyone equally, but disadvantages
those with a protected characteristic e
...
compulsory staff meetings during school runs disadvantaging parents
...
g only time when most staff are
available
...

c
...

(2) Each of the following is a protected act—
(a) bringing proceedings under this Act;
(b) giving evidence or information in connection with proceedings under this Act;
(c) doing any other thing for the purposes of or in connection with this Act;
(d) making an allegation (whether or not express) that A or another person has
contravened this Act
...

(4)This section applies only where the person subjected to a detriment is an individual
...
Harassment:

S 26- its is a long but common sense definition, so in the exam use the statute book, it covers things such as bullying,
hostility, sexual conduct etc
...


Disability Discrimination
1
...
e
...
e
...

Consider:
•
the time taken to carry out an activity;
•
the way in which an activity is carried out;
•
cumulative effects of an impairment;
•
effects of behaviour;
•
effects of environment
...
The Regulations provide that
psychopathic or anti-social disorders such as kleptomania or paedophilia are excluded
...

The case of a diabetic is perhaps a classic example:
•
a well controlled diabetic may have an excellent attendance record/is able to carry out tasks perfectly;
•
ignore his/her treatment? - severe illness, complications, coma, death, - which must therefore have a longterm and substantial effect on their ability to carry out day-to-day activities
...
If treating or managing symptoms by
medication-> ignore the medication
...


...
Is there an unlawful act?
Again s 39- not hiring, dismissing, treating them worse etc
3
...
Direct- section 13- as above (Here for comparator use someone who does not have the same disability or
does not have a disability at all but has the same skill, degree, e
...
typing speed etc)
b
...
Harassment- s 26
d
...
Discrimination arising from disability- s 15
Example: A’s kidney is failing so as a result she has been missing work for 3 months
...
It is therefore not direct, but the dismissal was a result of her disability
...

No need for a comparator- must just show that the unfavourable treatment was a result of the disability
15 (1) (b) – defence: if treatment can be objectively justified as a proportionate means of achieving a legitimate aim
f
...
This could be during job, interview process,
assessment process etc
...
g
...
g
...
What is a reasonable step for an
employer to take will depend on all the circumstances of each individual case
...
, for example, would a suitably
amended keyboard prevent the disadvantage?
• The practicability of the adjustment
...

• The extent of the employers financial or other resources
...

Knowledge (schedule 8)
An employer only has a duty to make an adjustment if they know, or could reasonably be expected to know, that a
disabled person is, or may be, an applicant for work
...

How to protect yourself as an employer:
• Have an Equal Opportunities policy (EOPS)
• Active and visible implementation of their stance on EOPS
• Firm action where breaches are reported
• Effective and recorded training for relevant individuals
Liability of individuals:
It is not always appreciated that the “victim” of unlawful discrimination is entitled to name both the Company and
the individual as Respondents in any action
...
A tribunal may hear a complaint made after that date if in all
the circumstances of the case it is considered equitable so to do
...

Burden of proof- s 136- if claimant establishes a prima facie case, burden of proof on employer
Obtaining evidence- applications for disclosure or inspection, written replies to questions

Remedies- s 124:
• Declarations
• Compensation (unlimited, including pecuniary loss and injury to feelings)
• Recommendations (re-employment, apologies, attendance to training courses, production of an EOPS)

Part 5 Revision Notes

TUPE- only relevant for business sales, not share sales
...

Does TUPE apply?

Is there a ‘relevant transfer’ ? (Reg 3)
there is a transfer of an undertaking or
a business (or part of an undertaking or
a business) (Reg 3(1)(a)

there is a service provision change (Reg 3(1)(b)
Covers:
(i)

activities cease to be carried out by a person ("a client") on his
own behalf and are carried out instead by another person on
the client's behalf ("contracting out/ outsourcing")

(ii)

activities cease to be carried out by a contractor on a client's
behalf (whether or not those activities had previously been
carried out by the client on his own behalf) and are carried
out instead by another person ("a subsequent contractor") on
the client's behalf (“retendering)

(iii)

activities cease to be carried out by a contractor or a
subsequent contractor on a client's behalf (whether or not
those activities had previously been carried out by the client
on his own behalf) and are carried out instead by the client on
his own behalf (“contracting in”, “insourcing”)

Reg 3 (1) (a) this business transfer is
of an economic entity which retains
its identity;”
Reg 3 (2) - “economic entity” means
an organized group of resources
which has the objective of pursuing
an economic activity, whether or not
that activity is central or ancillary
...
these Regulations
apply to (a) public and private
undertakings engaged in economic
activity whether or not they are
operating for gain”
...


Case of Spijkers is key in deciding whether
there was a transfer- ‘common sense
approach’- it said that you must take a
realistic and robust approach- "Technical rules
are to be avoided and the substance matters
more than the form
...
(excludes supplying
contracts)

Which employees are protected?
Those employed as a fact before the transfer- Reg 4 (3)
Those dismissed in circumstances where the sole or principle reason for the dismissal was the transfer- Reg
7 (1)- so this prevents the dismissal of an employee before transfer to get around TUPE

Effect of TUPE
Statutory novationReg 4 (1)- Relevant transfer does not terminate the contract of employment, and after the transfer it will be assumed as if they had
worked for the new employer all along
Reg 4 (2)- all rights, powers, duties and liabilities get transferred, and the new employer could essentially be liable for anything the
previous employer had done
Reg 4(7) & (8) – transferred employee can object- in practice they wouldn’t, as they would not be entitled to any compensation

Variation of conditions2
...

3
...
Reg 4(5)(a) the sole or principal reason for the variation is an ETO reason entailing changes in the
workforce provided that the employer and the employee agree; or
b
...
Reg 4(5A) “changes in the workforce” includes a change to the place where the employees are employed
5
...


* What is an “economic, technical or organisational reason” (an “ETO”)? (Reg4(5)(a))
There is no statutory definition of an ETO
...
”
However, remember that it must be an ETO entailing changes in the workforce
...
The BIS guidance states that “Interpretation by the
courts has restricted it to changes in the numbers employed or to changes in the functions performed by employees
...

New Reg (5A) has clarified that change to a place of work can also be an ETO entailing a change in the workforce – so a relocation of
an employee would be a permissible change to his terms and conditions, as would any other changes to terms consequent upon the
relocation
...
Reg 7(1) - a dismissal of an employee of either the transferor or transferee either before or after a relevant transfer, will be an
automatic unfair dismissal if the sole or principal reason for the dismissal is the transfer
...
Reg 7(2) - where the sole or principal reason for the dismissal is an ETO reason entailing changes in the workforce (of the
transferor or transferee), then Reg 7(3) applies
c
...
Reg 7(3)(a) – Reg 7(1) does not apply (ie dismissal is not automatically unfair)
ii
...
Reg 7(3A) – “changes in the workforce” includes a change to the place of work

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