Introduction to employment law

TerminologyAnne Brunon-Ernst

(University Panthéon-Assas)

List of Terms-Labour code-Labour inspectorate-Formal source-Informal source-Collective agreements (c.a.)-Omnes effect-Workers’ representation-Trade union (T.U.)-Incorporation-Contract of employment-Consideration-Worker -Employed-Self-employed-Test-Mutuality of obligation-Minimum wage-Whistleblowing

-Express terms-Implied terms

-Termination-Frustration-Agreement -Repudiation-Resignation-Dismissal-Wrongful dismissal-Unfair dismissal-Redundancy-Reinstatement-Reengagement-Compensation-Award-Industrial action-Immunity-Direct discrimination-Indirect discrimination

What is employment law?

Employment law is the set of rules governing the employment relationship. It operates as a framework for the operation of all parties in the labour market:-Employers-Workers-Trade unions-Trade union members

Sources of employment law

CIVILIAN SYSTEMS

- Labour code

= set of laws governing the employment relationship

- Labour inspectorate

= Government service which deals with the inspection of workplaces to see that labour codes are being correctly implemented

COMMON LAW SYSTEM

- Formal sources- Common law

- Contract of employment- TU immunity

- Legislation- Collective laissez faire- Employment Rights Act

(ERA) 1996- EC Law

- Informal sources- - Collective agreements

Collective Agreements- Definition: A collective agreement is an agreement about wages and working conditions between management and workers’ representatives-Aim: regulate - Relations between employers’ organisations and TUs

- Terms of individual contracts of employment-Not legally binding- Unless included in the individual contract- No erga omnes effect = no right or obligation towards all

See s.178(1) of the Trade Union and Labour Relations (Consolidation) Act 1992

Trade Union and WorkerTrade union: ‘an organisation (whether temporary or permanent) which consists wholly or mainly of workers of one or more descriptions and whose principal purpose include the regulation of relations between workers of that description or those descriptions and employers or employers’ associations’ s.1(a) of the Trade Union and Labour Relations (Consolidation) Act 1992Worker: ‘In this Act worker means an individual who works, or normally works or seeks to work –(a)Under a contract of employment, or(b)Under any other contract whereby he undertakes to do

or perform personally any work or services for another party to the contract who is not a professional client of his …’

s.296 of the Trade Union and Labour Relations (Consolidation) Act 1992

Industrial action

Industrial: adjective relative to workIndustrial dispute: argument between management and workersIndustrial action: Steps workers take to press demands on management Industrial tribunal: court which decides in disputes between employers and employees or trade unions

From Dictionary of Law, 3rd edn, London, Peter Collin Publishing, 2002

Incorporation1. Agreement between collective parties Parties to the agreement are union and employers Principle of privity of contract Not legally enforceable

2. Incorporation= terms of the collective agreement become part of the

contact between employers and employeesA.Implied incorporation: both parties have accepted the

provisions as binding (see Joel v Cammel Laird (1969) ITR 206)

BUT only applies to union members (see Singh v British Steel Corporation (1974) IRLR 131)

B. Express incorporation: statement in the contract to the effect that the relevant provisions shall be part of the individual’s contract (see ss.1-6 of Employment Rights Act 1996).

immunityThe trade union will be immune from tortious liability if the action is within the golden formula and the torts listed in s.219:‘An act done by a person in contemplation or futherance of a trade dispute is not actionable in tort on grounds only:(a)That it induces another person to break a

contract or interferes or induces another person to interfere with its performance, or

(b)That it consists in his threatening that a contract (whether one to which he is a party or not) will be broken or its performance interfered with, or that he will induce another person to break a contract or interfere with its performance’

s.219 of the Trade Union and Labour Relations (Consolidation) Act 1992

The contract of employment

-Offer-Acceptane-Intention-Consideration-Express terms-Implied terms

EmployeE, self-employed OR worker?

Different terms, different rights 1. Mutuality of obligation= the employer is obliged to give me work and I am bliged to accept it

Employee = contract of service = contract of employement

Self-employed = contract for services

2. No mutuality of obligationWorker either in a contract of employment or in a contract to provide personal services-National minimum wage-Protected against dismissal in case of whistleblowing

Tests

Three tests to determine the status of a person: -Control test: degree of control by the employer-Integration test: integrated in the business -Multiple test: who bears the risk?

O'Kelly and Others v Trusthouse Forte plc [1984] 1QB90

O’Kelly and some other casual catering staff were claiming that Trust House Forte (“THF”) had unfairly dismissed them for an inadmissible reason. The preliminary issue in the case was whether they were employees working under contracts of service or independent contractors working under contracts for services.Facts: THF kept a list of some 100 casual catering staff, known as “regulars”, who worked for them at the Grosvenor House Hotel in London. THF employed permanent staff but also engaged casuals to provide catering and other services in relation to their business of hiring out rooms in the hotel for private functions. The bar manager maintained a list of some 40 wine butlers and 60 food service waiters and waitresses - the “regulars”. Other casual staff numbering between 200 and 300 worked less regularly. Mr O’Kelly was one of the wine butlers and he worked virtually every week for hours varying from as little as 3 in some weeks to as many as 57 in others. Some of the other factors taken into account by the industrial tribunal and which pointed to a contract of service were as follows: Capital not invested; No opportunity to gain or lose; THF exercised control part of the THF organisation when working; Clothing and equipment provided by THF; Paid weekly in arrears; Disciplinary and grievance procedure in place; Holiday pay or incentive bonus.Factors not inconsistent with a contract of service included: Paid only for work actually performed – no regular wage or retainer; No sick pay, not in pension scheme, no fringe benefits unlike regular employees; No regular or assured working hoursFactors inconsistent with a contract of service included: Contract terminable without notice by either party; Applicants had right to decide whether or not to accept work; No obligation on THF to provide work; Mutual intention for self-employment; Custom in industry - casuals engaged under contract for services.Decision:The Industrial Tribunal found that because of the absence of mutuality of obligation the “regulars” were in business on their own account and were therefore working under contracts for services.From http://www.hmrc.gov.uk/manuals/esmmanual/ESM7100.htm

Express termStart date of employmentJob titleFixed term of indefinite term contractPlace of workHoursRate of remunerationDate of paymentHolidaysSick payPensionCollective agreements, if any

Implied termsCourts imply terms into the contract to help the contract to develop over the years-Duties implied on employers- Provide work?- Pay wages- Mutual trust and confidence- Safety

-Duties implied on employees- Cooperate- Obey- Reasonable skill and care- Confidentiality

Secretary of State for Employment -v- ASLEF (No 2) [1972] 2 QB 455

Railway employees had been instructed by their unions to "work to rule" and more specifically to ban overtime, Sunday and rest day working. "Working to rule" meant giving an unreasonably literal construction to certain requirements of the railway rule book (such as satisfying oneself that the engine is in order) and ignoring others, such as the rule that one should make every effort to facilitate the working of the trains and prevent avoidable delay. And this course of conduct was pursued with the intention of bringing the system to a halt. The question was whether the conduct of the union amounted to industrial action. Held: The employees were not obliged to work on Sundays and rest days and refusing to do so, even for the purpose of being obstructive, was not a breach of contract. On the other hand, there was a limited obligation upon individual employees to work 9 hour shifts instead of 8 when rostered to do so and the ban on this overtime was a breach of contract. In addition, the "work to rule" was in breach of a reasonable construction of the rules. So the instructions involved breaches of contract by the employees.http://www.swarb.co.uk/lisc/Emplm19701979.php

exerciseSecretary of State for Employment -v- ASLEF (No 2) [1972] 2 QB 455 Fill in the gaps with words from the list: implied; work to rule; contract; interests; employed; faithfully; excess; unsafe; obligations; terms

Buckley LJ said that the   ’(1)’ involved "breaches of an (2) term to serve the employer (3) within the requirements of the (4). It does not mean that the employer could require a man to do anything which lay outside his (5) under the contract, such as to work (6) hours of work or to work an (7) system of work or anything of that kind, but it does mean that within the (8) of the contract the employee must serve the employer faithfully with a view to promoting those commercial (9) for which he is (10).From http://www.swarb.co.uk/lisc/Emplm19701979.php

Termination of a contract

-Frustration = situation where the terms of the contract cannot possibly be fulfilled (illness, imprisonment etc.) -Agreement-Repudiation = employer or employee commit a fundamental breach of contract-Resignation by the employee = act of giving up a job-Dismissal by the employer = removal of an employee from a job

- Constructive dismissal = situation where an employee leaves his job voluntarily but because of pressure from the management

- Unfair dismissal = removing someone from a job by an employer who appears not to be acting in a reasonable way=> remedy under statute in an industrial tribunal

- Wrongful dismissal= removing someone from a job for a reason which does not justify dismissal and which is in breach of the contract of employment => remedy under contract in a County Ct

RedundancyERA 1996 s.139(1) provides that:"For the purposes of this Act, an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to (a) the fact that his employer has ceased, or intends to cease (i) to carry on the business for the purposes of which the employee was

employed by him, or (ii) to carry on that business in the place where the employee was so

employed, or(b) the fact that the requirements of that business (i) for employees to carry out work of a particular kind, or

(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the

employer have ceased or diminished or are expected to cease or diminish"

remedies-Reinstatement = to the same job, if unfair dismissal (rarely awarded)-Reengagement = to a different job, but equivalent, if unfair dismissal (rarely awarded)-Compensation- Basic award (in respect to the period of service)

- Compensatory award (loss of future employment prospects)

- Additional award/special award: rarely used

Discrimination-Discrimination= treating different people in different ways-Direct discrimination= illegal discrimination where similar cases are treated differently or where different cases are treated in the same wayExcept GOQ: exhaustive list of derogations-Indirect discrimination= discrimination by applying an abstract principle, so that the result is that people of different sexes are treated differently