Please enable JavaScript.
Coggle requires JavaScript to display documents.
Employment Law Summary (Employment Rights (NI) Order 1996) - Coggle Diagram
Employment Law Summary (Employment Rights (NI) Order 1996)
Employment Status
Whos who?
Employees defined under Art 3(1)
Workers - Art 3(3)
Self Employed - not protected under employment law
Legal definitions not helpful therefore courts rely on tests when deciding a persons employment status
The Control Test, Organisational Test, Economic Reality, Multiple Factor Test
Casual Workers (not needed)
Contract of Employment
Can be in writing or not
Written statement of terms (ART33)
The Particulars (No.1) and (No.2) are outlined in art 33 eg, Commencement date, Job title, Hours, Place of work, Sick pay etc
Express terms
eg. wages, salaries, bonuses, hours of work, holidays, pension rights
If an employer breaches an express term, then employee can act on it and claim constructive dismissal - court will determine whether breach goes to root of contract
Implied Terms
Courts will Imply a term into a contract where parties did not expressly insert such a term in some cases
Employer Implied Terms - duty of trust and confidence- to show respect to the employee, to pay wages, health and safety of employee, duty to provide work and duty to take reasonable care with references
Employee Implied Terms - to be ready and willing to work, to use reasonable care and skill, to obey all lawful and reasonable orders, to take care of the employers property and to act
Common Law Principles - Offer and acceptance, Conditional offers and Collateral contracts
Contracts will be invalid if: there was no consideration, no intention to create legal relations or the contract was illegal
Discrimination in Workplace
Concepts of Discrimination
Direct Discrimination
This occurs where a person treats another less favourably on prohibited grounds i.e. Would complainant have received the same treatment but for her sex, race etc
Indirect Discrimination
‘Indirect discrimination’ is the popular term to describe a form of disadvantage that arises where an apparently neutral condition or requirement, or more recently criterion or practice, has a disproportionate adverse impact on persons of one gender or the other.
Victimisation
Victimisation of a person who has brought or been connected with bringing a case under the legislation is the third form of unlawful sex discrimination
Harrasment
where a person (A) subjects another person (B) to conduct which has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
Aspects of Discrimination
Gender Discrimination
Disability
Racial
Age
Religious
Discipline and Grievance Procedures
Statutory Discipline and Dismissal Procedures (DDP
123 STEP - complaint set out in writing, meeting and appeal
Failure to follow the DDP will lead to a finding of automatically unfair dismissal - increase in compensatory award 10-50 %
Vice Versa - failure to follow by employer will lead to decrease of award
Note - new modified procedure
Dismissal
Legal actions which may result from termination of contract
Statutory unfair dismissal
Arts 126-169
Claim can be brought within 3 months of dismissal
Must be an employee with 2 years continuous service
Must be dismissed
Unfair dismissal? Art 130
Established a dismissal Art 127
Termination by emplpyer
Expiry of fixed-term contract
Constructive dismissal
Potentially Fair reasons for dismissal?
Capability, Conduct, Redundancy, Breach of statute or SOSR
Common Law - Wrongful Dismissal
Breach of contract - heard in ordinary courts - most common form of dismissal
Right to notice- 1 week for up to 2 years service; 1 week for each year of service thereafter from 2 yrs to 12 yrs service; 12 weeks notice for 12 years or more service
Claim for redundancy payment
Health and Safety at Work
Liability of employers :
In Tort
In Contract
Under Statute SW (NI) Order 1978
Redundancy
Art 174
Type of Redundancy must be established
Employer has ceased or is about to cease business in the place where employee was employed or the requirements of business for employees to do work of a particular kind in a particular place has ceased or diminished
123 step process for redundancy
Notification, Meeting, Appeal
Right to be accompanied
Suitable Alternative Employment - Art 176
Industrial Action
Striking is a breach of contract at common law
Civil offence - Tortious liability generally
Criminal offence
Industrial action and torts - Inducing breach of contract, Causing loss by unlawful means, Intimidation, Conspiracy, Inducing breach of statutory duty and Economic durees.
Statutory Immunity Art 97
Civil Liability 3 Q's:
Does Immunity apply?
Has Immunity been lost?
Has a tort been commited?
TUPE
Protection for employees (some agency and casual workers) caught up in the transfer of undertakings of their employer. Existing rights should be preserved and transfer is not a valid dismissal
Transfer dismissals amount to automatic unfairness (Reg 7)
Unless ETO defence applies