Employment Law B143 WHOLE UNIT

Nota:

• entitled to rights and protections and  have responsibilities as an employee 

1. the tests for employee status
   1. Control
   2. Mutuality of obligation
   3. Integration
   4. Economic reality

1. employee should receive this within 1 month
2. express terms should include
   1. names and address
   2. hours
   3. pay/salary
   4. place of work
   5. holiday pay
3. implied terms

   Nota:

   • don't have to be written
   1. automatically part of the contract
      1. mutual trust and confidence

         Nota:

         • means neither party will cheat, steal etc or treat the other party disrespectfully. 
      2. parties will follow health and safety rules
      3. 'good faith'

1. WAYS of discrimination
   1. direct

      Nota:

      • something which directly excludes a particular group of people
      1. "dinner lady required"

         Nota:

         • directly excludes male applicants
   2. indirect

      Nota:

      • a rule which appears to apply to everyone but puts one group at a PARTICULAR DISADVANTAGE
      1. example
         1. "cleaner - must be over 5'10"

            Nota:

            • most WOMEN would be excluded and there is no proper reason to have this limitation
   3. harassment
      1. example
         1. teasing or bullying
   4. victimisation

      Nota:

      • treating someone who has made a complaint about discrimination unfairly. 
      1. example
         1. not promoting someone who has made a complaint
2. exceptions
   1. "genuine occupational requirement"
      1. where there is a reason to restrict who you employ
         1. EG gender

            Nota:

            • if someone is doing personal care for a man , it is reasonable to ask for a man.  If someone is going to supervising changing rooms, it is reasonable to specify a gender. EG 'female PE teacher' 
         2. Race

            Nota:

            • would normally be indirect against race
            1. "must wear a hat"

               Nota:

               • may indirectly disriminate against some religions with headwear rules.  BUT if necessary for safety or hygiene then it is a 'genuine occupational requirement' 
            2. "black actor"

               Nota:

               • it is reasonable for actors and models to be specified by race. 
3. Types of discrimation
   1. equal pay

      Nota:

      • Equal Pay 1973
      1. 'like work'
   2. sex discrimination
   3. age
   4. transgender
   5. sexual orientation
   6. race
      1. includes nationality & ethnic origin
   7. Disability discrimination
      1. employer has to make reasonable adjustments

         Nota:

         • employers are asked to make reasonable adjustments for disabilities. 
4. evaluation
   1. value to employees

      Nota:

      • equal opportunity to be employed and promoted regardless of background Protection from harassment and bullying in the workplace which makes people stressed and uncomfortable Safe to make a complaint without worrying about being treated badly afterwards - victimisation is prevented.  
   2. value to employers

      Nota:

      • Should employ people base on merit rather than background. This means they will have the best possible workforce.  Have laws to help them prevent bullying and harassment amongst staff. this will make the business or productive A diverse workforce will help promote the company across society and attract strong applicants from across all of society.   
   3. limitations

      Nota:

      • some people and groups are not protected by the legislation.  It is still possible to discriminate against these people lawfully.  

1. common law protections
   1. Wilson v Clyde Coal
      1. 4 key protections
         1. safe access to a safe workplace

            Nota:

            • working environments should be safe.
         2. safe systems

            Nota:

            • processes and information should be safe should have policies, safe rules, safe ways of working 
         3. safe appliances

            Nota:

            • equipment and machinery, incuding PPE should be safe.
         4. safe fellow workers

            Nota:

            • employers responsibility not to partner you with 'dangerous dave'
2. statutory protections
   1. Health & Safety at Work Act 1974
      1. EMPLOYER responsibilities

         Nota:

         • only need to take "reasonably practical" steps.   Some jobs may still be dangerous.. fire-fighter,police officer, oil-rig worker.
         1. Safe plant and systems

            Nota:

            • safe equipment and processes
         2. safe methods of handling

            Nota:

            • lifting and transporting anything hazardous should be done safely
         3. provide training

            Nota:

            • training and information about health and safety
         4. safe workplace

            Nota:

            • safe working environment
         5. welfare facilities

            Nota:

            • toilets and showers
      2. EMPLOYEE responsibilities
         1. to follow H&S rules
         2. to take responsibility for own safety
         3. to attend training
      3. Created the Health and Safety Commission
         1. can inspect and investigate
         2. can issue improvement notices

            Nota:

            • improvement notice will identify risks Say what improvements need to be done Give a strict time limit 
            1. 2 weeks to comply
               1. employer can appeal
               2. employer fixes risks
         3. can close a workplace

            Nota:

            • if the risks are extreme or the improvement notice is not followed
            1. prohibition notice
3. health and safety signs
   1. video link

      Nota:

      • http://www.youtube.com/watch?v=8PhgPdmm2lk Check out others on the internet 
4. European Protections.
   1. The Six Pack
      1. Management of H&S Regs

         Nota:

         • plan and organise health and safety effectively do risk assessments for all workplace activity devise effective processes such as evacuation 
      2. Manual Handling reg

         Nota:

         • where possible, elminate heavy lfiting - use machines etc instead Where lifting is required train staff to do this correctly 
      3. Display Screen Equipment

         Nota:

         • reduce risk by building in breaks offer employers using screens free eye tests and glasses provide training on proper use 
      4. Workplace regulations

         Nota:

         • work site and environment should be safe and well maintained Well lit Well ventilated reasonable temperature suitable workspace 
      5. Work Equipment Regs

         Nota:

         • machinery and vehicles Should be checked regularly Should be maintained Absolute requirement that equipment be safe.  
      6. PPE regs

         Nota:

         • Personal Protective Equipment Clothing, facemasks, hard hats, hi-vis clothing. 

1. types of dismissal
   1. fair

      Nota:

      • dismissal where the employer has good reason and has followed the correct processes
      1. redundancy

         Nota:

         • where the job no longer exists for practical or economic reasons eg job replaced by machine or company no longer can afford the employee 
      2. conduct

         Nota:

         • if employee behaves badly they may be fairly sacked.  Sometimes after warning. Sometimes immediately if there is GROSS misconduct 
      3. retirement

         Nota:

         • it is fair to end someone's contract when they reach retirement age.  This opens up opportunities to younger members of staff 
      4. capability

         Nota:

         • if somone is incapable of their job, either illness or just ongoing poor performance, it is fair to dismiss them. 
   2. unfair
      1. no good reason
      2. correct fair process not followed

         Nota:

         • employer should investigate any problems and allow the employee a chance to challenge their dismissal in an appeal
      3. only protects after 2 years

         Nota:

         • you have to have been working for 2 years before you can claim for unfair dismissal
   3. constructive

      Nota:

      • where the employee resigns because of implicit breach of contract by the employer.  Once they have shown constructive dismissal they can use unfair dismissal rules to get a remedy 
      1. unfair changes to contract

         Nota:

         • eg - asking to move hundreds of miles Demotion reduction in pay  Unreasonable change of hours 
      2. breach of 'trust and confidence'

         Nota:

         • bullying or harassment in the work place.   
   4. wrongful

      Nota:

      • ££££££££££££££££££££££££  simply means that the employrer has not given the employer the right amount of notice or pay at the end of the job  £££££££££££££££££££££££ 
   5. summary

      Nota:

      • where the employee has committed GROSS MISCONDUCT Drinking, fighting, stealing 
      1. instant

         Nota:

         • no entitlement to warning or notice
2. evaluation
   1. employer

      Nota:

      • useful for employer because thre are many fair ways that they may dismiss and employee EG Redundancy enables them to dismiss when the job no longer exists, meaning the company can stay profitable Summary dismissal means that employers can dismiss dangerous or offensive employees, making the company more productive   Employers can also sack employees who are incapable of doing the job. This enable them to replace them with a new employee and be more productive and competitive 
   2. employee

      Nota:

      • protection means that they cannot be sacked without good reason, otherwise would get compensation through unfair dismissal. also they cannot be forced out of a job by their employers bullying them . they can use 'constructive dismissal' law to get a remedy Empoyees can use the law regarding wrongful dismissal to make sure employers pay all they are owed.