Lengua y Derecho II, tercer parcial. Labour Law.

When is an employee not an employee? The answer, quite simply, is when that individual is [blank_start]self[blank_end]-[blank_start]employed[blank_end]. [...] An employee is entitled to a considerable level of statutory and common law [blank_start]protection[blank_end], much more than if that person was [blank_start]self[blank_end]-[blank_start]employed[blank_end].

An employee is entitled to the following rights: -protection against [blank_start]unfair[blank_end] dismissal; [blank_start]redundancy[blank_end] pay; notice of [blank_start]termination[blank_end] of employment; [blank_start]guaranteed[blank_end] payments in respect of lay-off and short-time working; written particulars of employment; equal pay; maternity rights; protection from race discrimination; protection from sex discrimination; protection from trade union [blank_start]victimization[blank_end]; protection of employment upon the transfer of a business; time off to fulfil [blank_start]trade[blank_end] [blank_start]union[blank_end] duties; to be protected by reasonable health and safety measures; not to have [blank_start]unlawful[blank_end] deductions made from wages; to be paid statutory sick pay; protection from discrimination on the grounds of disability; [blank_start]national[blank_end] minimum wage; paid annual [blank_start]leave[blank_end]; limitation on working time; parental [blank_start]leave[blank_end]; the right not to be discriminated against on the grounds of [blank_start]religious[blank_end] [blank_start]belief[blank_end] (Northern Ireland).

The court will take into account a range of factors in deciding whether an individual is an employee or is [blank_start]self[blank_end]-[blank_start]employed[blank_end]. The starting point for the court is to ask: 1- whether the 'employer' is obliged to [blank_start]provide[blank_end] work [blank_start]for[blank_end] the 'employee'; and 2- is the 'employee' obliged to [blank_start]personally[blank_end] [blank_start]perform[blank_end] work [blank_start]for[blank_end] the 'employer'?

Other important factors in determining the status of a worker are detailed in the table below. The court will look at all the factors and make a balanced decision. The test is known as the '[blank_start]multiple[blank_end]-[blank_start]factor[blank_end] test' and all of the issues are given equal scrutiny.

A contract of employment, like any other legal contract, is regulated by basic [blank_start]common[blank_end] [blank_start]law[blank_end] principles. There are also a number of other legal requirements imposed by [blank_start]statute[blank_end] in respect of the form and content of the contract of employment. For a contract to exist in law between two parties [...] there must be the following elements: -an [blank_start]offer[blank_end]; -[blank_start]acceptance[blank_end]; and [blank_start]payment[blank_end] or [blank_start]benefit[blank_end].

To determine what the parties have actually agreed, courts or tribunals will consider the following types of contract term: - [blank_start]express[blank_end] terms; - [blank_start]implied[blank_end] terms; - [blank_start]incorporated[blank_end] terms.

[[blank_start]Express[blank_end] terms] represent what has been specifically agreed between the parties. [...] In the event of a dispute, they will [blank_start]override[blank_end] all other terms of the contract. [...] A term may be [blank_start]implied[blank_end] into the contract of employment when its existence is so obvious that it must have been [blank_start]contemplated[blank_end] by the parties, even though they did not confirm it specifically in writing.

The prime example of an [blank_start]incorporated[blank_end] term is one that becomes part of an employee's contract by reason of it being [blank_start]negotiated[blank_end] by a [blank_start]trade[blank_end] [blank_start]union[blank_end] with the employer on behalf of the employee (or usually group of employees).

There is [...] a statutory right to a minimum of [blank_start]four[blank_end] [blank_start]weeks[blank_end]' [blank_start]paid[blank_end] [blank_start]leave[blank_end] each year for all employees. Employees become entitled to [blank_start]four[blank_end] [blank_start]weeks[blank_end] [blank_start]paid[blank_end] [blank_start]leave[blank_end] after they have worked for their employer for [blank_start]13[blank_end] [blank_start]weeks[blank_end].

[T]he notice period must never be less than the statutory minimum requirement. [...] Period of employment----------------------------------------------------Notice period Less than one month's service----------------------------------------- A [blank_start]reasonable[blank_end] period of notice Between one month's and two years' continuous service---1 [blank_start]week's[blank_end] notice Between 2 years and 12 years------------------------------------------ 1 [blank_start]week[blank_end] for each complete year of service Over [blank_start]12[blank_end] years' service------------------------------------------------------ [blank_start]12[blank_end] weeks' notice

Statutory Terms Affecting the Contract of Employment The [blank_start]Equal[blank_end] Pay Act 1970 The [blank_start]Patents[blank_end] Act 1977 The [blank_start]Copyright[blank_end], [blank_start]Designs[blank_end] and Patents Act 1988 The [blank_start]Employer's[blank_end] [blank_start]Liability[blank_end] ([blank_start]Compulsory[blank_end] Insurance) Act 1969 The [blank_start]Employer's[blank_end] [blank_start]Liability[blank_end] ([blank_start]Defective[blank_end] Equipment) Act 1969 The [blank_start]Factories[blank_end] Act 1961 The [blank_start]Offices[blank_end], [blank_start]Shops[blank_end] and [blank_start]Railway[blank_end] [blank_start]Premises[blank_end] Act 1963. The [blank_start]Employment[blank_end] [blank_start]Rights[blank_end] Act 1996.

[blank_start]By[blank_end] [blank_start]virtue[blank_end] [blank_start]of[blank_end] legislation which took effect from 1987, manual workers no longer have the right to be paid in cash, or '[blank_start]coin[blank_end] of the [blank_start]realm[blank_end],' as it was known.

Employees have a legal right to an [blank_start]itemized[blank_end] pay statement unless they are: - [blank_start]engaged[blank_end] in police service; - employed as a [blank_start]share[blank_end] fisherman or [blank_start]merchant[blank_end] seaman.

A statutory [blank_start]framework[blank_end] for [blank_start]regulating[blank_end] deductions is now contained in the [blank_start]Employment[blank_end] [blank_start]Rights[blank_end] Act 1996. The Act covers most, but not all, forms of deduction.

Excluded from those provisions are those deductions made: 1- to reimburse the employer for a previous [blank_start]overpayment[blank_end] of wages; 2- further to a statutory [blank_start]provision[blank_end] [...]; 3- as a result of any [blank_start]disciplinary[blank_end] proceedings made under any statutory [blank_start]provision[blank_end]; 4- where the employer is [blank_start]bound[blank_end] by statute to deduct and pay [blank_start]over[blank_end] an amount to a public authority; 5- to pay a third person, where the employee consents in writing [blank_start]to[blank_end] such payment and the third person has notified the employer of that amount; 6- further to the employee's participation in a [blank_start]strike[blank_end] or other industrial action, and the deduction relates to this action; 7- further to the [blank_start]satisfaction[blank_end] of an order of a court or tribunal for the payment of an amount by the employee to the employer.

Wages, for the purposes of this statutory provision, will include the following sums payable to the worker: -fees; -[blank_start]bonus[blank_end] payments; -commission; -holiday pay; -[blank_start]statutory[blank_end] sick pay; -[blank_start]statutory[blank_end] maternity pay; -[blank_start]guarantee[blank_end] payments (in respect of [blank_start]lay[blank_end]-[blank_start]off[blank_end] [...]) -any sums ordered to be paid by an employment tribunal for [blank_start]reinstatement[blank_end]/re-engagement; -earned [blank_start]overtime[blank_end]; -basic wage or salary.

Special provisions apply to workers within the retail industry in respect of cash shortages and stock [blank_start]deficiencies[blank_end]. The maximum deduction on any pay day must not exceed [blank_start]10[blank_end] per cent of the gross wages on that day.

An employee must [blank_start]take[blank_end] his complaint of an unlawful deduction from wages [blank_start]before[blank_end] an employment tribunal. The claim must be [blank_start]made[blank_end] within [blank_start]three[blank_end] months of the date of deduction.

Where an employee owes money to a creditor, the court can [blank_start]make[blank_end] an attachment of earnings [blank_start]order[blank_end]. Under the [blank_start]order[blank_end], the debtor's employer must pay part of the debtor's wages at a regular interval directly to the court office.

An employee has the right to receive a statutory [blank_start]guarantee[blank_end] payment from their employer if the employer fails to [blank_start]provide[blank_end] work due to: -a [blank_start]reduction[blank_end] in the employer's business that affects the work of the employe; -some other [blank_start]occurrence[blank_end] that affects the employer's business and, in turn, the work of the employee.

In order to be eligible for the payment, the employee must have been employed for [blank_start]one[blank_end] [blank_start]month[blank_end] before the first day without work and must not be working under a [blank_start]fixed[blank_end]-[blank_start]term[blank_end] contract of [blank_start]three[blank_end] months or less. In addition, the employee must not unreasonably refuse to [blank_start]undertake[blank_end] other similar duties within their capability if requested by the employer, in an attempt to find suitable alternative work for the employee.

If the employer fails to make a guarantee payment the employee can [blank_start]make[blank_end] an [blank_start]application[blank_end] for payment [blank_start]to[blank_end] an employment tribunal. The application must be made within [blank_start]three[blank_end] months of the day for which a guarantee payment is claimed.

When the employer is [blank_start]bankrupt[blank_end] or, if a limited company, made insolvent, the assets of the employer are sold [blank_start]off[blank_end]. The creditors of the business will then be paid in [blank_start]strict[blank_end] [blank_start]prioritized[blank_end] order. Secured creditors [...] are paid first. Employees are next in line to be paid.

Employees are entitled to receive the following provided that there is any money left after the [blank_start]secured[blank_end] [blank_start]creditors[blank_end] have been paid: -all wages and salary for up to [blank_start]four[blank_end] months immediately prior to insolvency (including statutory sick pay and statutory guarantee payments); -all accrued holiday [blank_start]entitlement[blank_end] up to the date of termination of the contract of employment by reason of the employer's insolvency. In any event, any sum payable relating to the points above is subject to a maximum of £[blank_start]800[blank_end] per employee. [...] [C]ertain debts are guaranteed to be paid by the state where the employer has no money to make the payments owed.

Where an employee tells his employer that he is leaving but is not ready, or willing, to work his notice period, he will not be entitled to any payment in [blank_start]lieu[blank_end] of notice. He will only be entitled to pay up to and including his last day of work. However, where he does offer to work his notice but is not wanted or [blank_start]falls[blank_end] sick during the period of notice, the employee will be entitled to the [blank_start]statutory[blank_end] [blank_start]period[blank_end] of [blank_start]notice[blank_end] to be paid by the employer at his normal rate of pay.

Where pay is variable, a week's pay is calculated as being the average [blank_start]hourly[blank_end] rate multiplied by the number of [blank_start]normal[blank_end] working [blank_start]hours[blank_end] in a week. The average [blank_start]hourly[blank_end] rate is calculated by referring to the period of [blank_start]12[blank_end] [blank_start]weeks[blank_end] immediately preceding the first day of the notice period where there are [blank_start]normal[blank_end] working [blank_start]hours[blank_end].

Statutory Sick Pay is the minimum amount of sick pay that all employees are entitled to (subject to qualification). [...] The following employees are not entitled to SSP: -employees aged [blank_start]65[blank_end] or over on the first day of [blank_start]sickness[blank_end]; -employees under a [blank_start]fixed[blank_end]-[blank_start]term[blank_end] contract of [blank_start]three[blank_end] months or less; -employees who earn (currently) less than £72.00 per week. Known as the 'lower earning limit'; -employees who go sick within [blank_start]eight[blank_end] weeks, or 52 weeks of having received certain social security benefits; -those who have performed no work for the employer under the contract of employment; -employees who are off sick during a [blank_start]stoppage[blank_end] at work due to a trade dispute [...]; -employees who are pregnant and go [blank_start]off[blank_end] sick during the maternity pay period; -those who are already [blank_start]due[blank_end] [blank_start]28[blank_end] weeks' SSP from their employers in any one period of incapacity for work (or any two or more 'linked' periods, i.e. separated by [blank_start]eight[blank_end] weeks or less period of entitlement of three years [...] -employees in legal custody on the first day of incapacity

Provided none of the above exclusions apply the requirements for qualification are that the employee: 1. must have [blank_start]four[blank_end] or more consecutive days of sickness (including non-work days and holidays) during which they are too ill to work; 2. must notify the employer of their absence; 3. must supply [blank_start]evidence[blank_end] of the incapacity, usually: (a) a self-certificate for the period of four to [blank_start]seven[blank_end] calendar days; (b) a doctor's certificate of illness from the [blank_start]eighth[blank_end] day of sickness onwards.

A period of sickness of four days or more is called the '[blank_start]period[blank_end] of [blank_start]incapacity[blank_end] for [blank_start]work[blank_end]' ([blank_start]PIW[blank_end]). Two or more [blank_start]PIW[blank_end]s which are separated by [blank_start]eight[blank_end] weeks or less are said to be '[blank_start]linked[blank_end]' and are counted as one [blank_start]PIW[blank_end]. During a [blank_start]PIW[blank_end], SSP is payable only: -where there is a period of entitlement; and -for the days within the [blank_start]PIW[blank_end] which are '[blank_start]qualifying[blank_end] days.'

Periods of incapacity for work can be [blank_start]linked[blank_end] where they are not separated by more than [blank_start]56[blank_end] calendar days. Where they are linked there are no [blank_start]waiting[blank_end] days for the second period of incapacity.

Statutory Sick Pay is currently payable for a maximum of [blank_start]28[blank_end] [blank_start]weeks[blank_end]. This need not be a single period but could be a series of linked PIWs within a maximum period of entitlement of [blank_start]three[blank_end] years.

The rate of SSP depends on the employee's [blank_start]average[blank_end] [blank_start]gross[blank_end] [blank_start]weekly[blank_end] earnings during the [blank_start]eight[blank_end] weeks preceding the PIW.

When an employee's contract of employment comes to an end the employer must issue a [blank_start]leaver's[blank_end] statement. [...] A new employee should give his [blank_start]leaver's[blank_end] statement to the new employer. If the employee falls sick within the first [blank_start]eight[blank_end] [blank_start]weeks[blank_end] of new employment, the information on the statement may affect the employee's entitlement to SSP.

[S]hould an employee receive an [blank_start]overpayment[blank_end] in their wage packet, it is likely to be recoverable by the employer if they find out. Spending the [blank_start]overpayment[blank_end] will not provide the employee with a legal defence. The only legal defence open to an employee in receipt of a mistaken [blank_start]overpayment[blank_end] is if he can persuade the court that in good faith he [blank_start]changed[blank_end] his [blank_start]position[blank_end] and incurred expenditure which would not otherwise have been incurred.