Charles Avens Employment Solicitor Druces LLP. www.druces.com. Practising solicitor / Non-practising barrister in the Druces’ Employment Group Specialise in all aspects of employment law and HR related matters
Specialise in all aspects of employment law and HR related matters
Area of particular interest- advising companies on their internal policies and procedures and acting in an advisory capacity to both HR departments and professionals.
Aim of speech is to provide you with an overview of some of the key employment facts
Employee = Company’s most important resource?
Growth of complex rules and regulations + employee’s knowing their rights
There are three types of employment status:
What is an employee?
who is self-employed (e.g. contractor) who works under a “contract for services”.
How do you prove your an employee? (Mutuality of Obligation / Control)
The tests of employment status:
Employee and sets out the core terms between the two parties.
have a duty under s.1 of the Employment Rights Act 1996 to provide an employee with
written terms within 2 months of the employee starting work- there is a penalty of
between 2 - 4 weeks salary for failing to provide an employee with written terms).
writing, some can be implied.
term reflects what the parties have actually agreed, whereas an implied term reflects
what the parties are taken to have agreed or would have agreed if they had put their
minds to the matter.
The Employment Contract does not have to be a long and complex document, its length and complexity is dependent on each individual situation but all employment contracts no matter how simple or complex must contain the following information:
employee has agreed to opt out), including any terms and conditions
relating to normal working hours
holiday pay, in such a manner as to allow them to be precisely calculated
It is unusual (and perhaps impossible) for the employer to specify in the employment contract, all the terms of the contract when it is made. Employment contracts will, therefore, normally be made up of both express and implied terms.
A Court will not imply a term simply because it is reasonable. A Court will only imply a term if it can presume it would have been the intention of the parties to include it in the agreement. In order to make such a presumption a Court must be satisfied of the following:
Employer’s implied obligations:
Employee’s implied obligations:
The employment relationship produces an implied obligation of mutual trust and confidence between both the employer and the employee.
In addition to the employment contract, it is advisable to have a staff handbook that contains all of your business’s policies and procedures. A staff handbook normally contains the following:
Unlike a worker and the self-employed, an employee is afforded a number of key statutory rights that are exclusive to the employer / employee relationship.
Some of those key statutory rights are as follows:
Right not to be Unfairly Dismissed
After 2 years service the employer has only 5 gateways by which an employee can be
fairly dismissed, which are as follows:
Retirement used to be the 6th gateway but since April 2011, the default retirement age of
65 has now been abolished, making it illegal to try and force an employee to retire at 65
unless retirement of that employee would be a ‘proportionate means of achieving a
are an apprentice. The current rates (from 1 October 2012) are:
£6.19 - the main rate for workers aged 21 and over.
£4.98 - the 18-20 rate.
£3.68 - the 16-17 rate for workers above school leaving age but under 18.
£2.65 - the apprentice rate, for apprentices under 19 or 19 or over and in the first year of their apprenticeship.
An employee only accrues the right toredundancy pay when they have worked for
their employer for a minimum of two years continuous service.
Age Factor X Length of Service X Statutory Weekly Gross Pay (Capped at £430)
National Minimum Wage
Right to a Statutory Minimum Notice Period
Pay in Lieu of Notice (PILON)
Right to Statutory Sick Pay
Holiday and Sick Leave
inclusive of 8 statutory bank holidays. (20 days paid leave + 8 paid bank holidays).
Statutory Maternity Leave
SMP is paid for the first 6 weeks at 90% of the employee’s average gross weekly earnings with no upper limit.
SMP is then paid for the following 33 weeks at the lower of either the standard rate of £135.45 per week or 90% of the employee’s average gross weekly earnings.
The final 13 weeks of maternity leave are unpaid.
SMP stops being paid if the employee returns to work beyond her designated 10 (KIT) days.
Statutory Maternity Pay
A male employee needs 26 weeks service with his employer before he is entitled to qualify for Ordinary Paternity Leave (OPL). The Employee must also be intending to take time-off to support the mother/ carer for the baby and intend to be fully involved in the child’s upbringing. (OPL is extra to the normal holiday allowance).
The Employee must be the child’s biological father, the mother’s husband or partner, the child’s adopter or the husband or partner of the child’s adopter and have notified the employer, when the baby is due and when he would like his OPL to start, at least 15 weeks before the EWC.
The employee may also qualify for Additional Paternity Leave (APL), which is for a maximum of 26 weeks, which can be taken between 20 weeks and 1 year after the child is born.
Statutory Paternity Leave
The Employee must be the biological father or adopter of the child or be the mother's (or adopter's) husband, partner or civil partner or have or expect to have responsibility for the child's upbringing.
The Employee must have continued to work for the same employer without a break for at least 26 weeks by the 15th week before the baby is due.
The Employee must continue to work for that employer without a break up to the date the child is born.
The Employee must be earning an average of at least £107 a week (before tax).
If the employee qualifies, ordinary SSP is paid for one or two consecutive weeks at £135.45 or 90 per cent of the employee’s average weekly earnings if this is less.
Statutory Paternity Pay
A worker can become an employee but this is dependent on the level of control that exists between the employer and the worker.
Temporary workers are not employees if they are free, without penalty, to accept or reject any offer of employment made to them.
Examples of specific categories of worker:
Casual worker, agency worker, homeworker, secondees, volunteers, trainees,
The working pattern of the ‘employee’ or ‘worker’ can be one of the following:
agency or 'temp'
they undertake work for a business (or multiple businesses) through a recruitment agency
their contract with the recruitment agency states that they are not their employee
their contract with the recruitment agency does not guarantee that they will find them work
they can decide whether or not to accept or refuse work
the employment agency pays their wages and deducts tax and National Insurance
the employment agency pays them when they are on holiday or pays them in lieu of accrued holiday at the end of their contract
they can leave the employment agency or a particular assignment giving little or no notice
the hirer (eg the end user business you work for) can terminate an assignment giving little or no notice
they have signed on the books of several employment agencies
they work on a variety of assignments through the year for different companies
The lack of day-to-day control by the agency whilst the individual is on assignment
usually prevents the individual from being the agency’s employee. Equally, the individual
is not an employee of the business they work for, because there is no obligation to offer
or accept work.
Agency Worker or ‘Temps’
they occasionally undertake work for a particular company or business
the company has no obligation to offer them work and they do not have to accept it - they only accept work when they are able to or willing to
if they do accept work, their contract describes the relationship as 'casual', 'freelance', 'zero hours', 'as required' or similar
they had to sign the company's standard terms and conditions in order to get the work
whilst at work, they are under the supervision or control of a company manager or director
they are expected to perform the work themselves
the company deducts tax and National Insurance contributions from their wages
the company provides any tools, equipment or materials that they need to undertake their work
The lack of any obligation to offer or accept work may prevent the individual from being
an employee. The issue is fact sensitive and up to a Court/Tribunal to decide based
upon the facts. The less control the more likely the individual is a worker.
Casual Worker or Irregular Worker
They do not have to work a minimum number of hours to qualify for employment rights.
As a part-time worker they have the right to:
receive the same rights of pay as full-time employees
not be excluded from training simply because they work part-time
receive holiday entitlement pro rata to comparable full-time workers
have any career break schemes, contractual and parental leave made available to them in the same way as for full-time workers
not be treated less favourably when workers are selected for redundancy
The completion of a limited-term or task contract counts as dismissal for unfair dismissal purposes. The expiry of a fixed term employment contract without renewal is deemed to be dismissal rather than simply the coming to the end of the contract "by performance". The effect is that employers cannot escape from liability to pay unfair dismissal compensation or statutory redundancy pay by employing staff on fixed term contracts which are simply not renewed when the employee is no longer wanted.
It is unlawful for an employer to treat a fixed-term employee less favourably than he treats a comparable permanent employee unless the treatment is objectively justified.
A fixed term employee who considers he is being treated unfairly can require his employer to provide a written statement setting out the reasons for the treatment complained of ( The request must be in writing and the Employer must reply in writing within 21 days).
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