1. 14/10/15 – Stephen Dale – Employment Law MAN3131
MAN3131 University of Surrey Employment Law Session 02 – The Contract of Employment 14th October 2015
14/10/15 – Stephen Dale – Employment Law MAN3131

2. Employment Law - Sources of Law Lecture Overview
Employment recap from last week, Session 01.
ACAS and The Central Arbitration Committee (CAC)
Underpinning the sources of terms in the ‘Contract of Employment’.
Nature and formation of the ‘Contract of Employment’.
Research for Next Session & assignments.

3. Employment Law Preparation Reading for this week
Chapters 2 & 3:
Understand the nature, scope and significance of an employer/ employee relationship and the diversity of employment status that now exists in the flexible labour market.
The Contract of Employment: the contractual nature of the relationship, employee status, sources of rights and obligations, contractual terms, liability.

4. Employment Law MAN3131 Assignment 01 – EBookBinders Limited
Available on SurreyLearn.
Due Date: Mon 2nd November.
Week 4 – Note One 2 One Support

5. Employment Law Perspective & Approach

6. Employment Law – Last Week!
Lets Recap from last week
What is Law?
Types of Law – Framework?
What is Case Law and Judicial Precedent?
Groups?

7. Employment Law – Court Structure
Taken From -

8. Counting The Tribunal Cost 2014 Employment Tribunal Fees
Go through the timetable of events.

9. ACAS Advisory, Conciliation and Arbitration Service
ACAS Podcasts and videos

10. ACAS The Advisory, Conciliation and Arbitration Service (Acas)
Acas has been in existence since 1974 and is financed by the Government.
Prior to 2014 Acas was seen as an alternative to bringing a case to an Employment Tribunal.
Employment Tribunals - Early Conciliation certificate issued by Acas.
Conciliation where a trade dispute exists or is likely to arise, Acas can assist the parties with a view to settlement.
The Acas Arbitration Scheme was introduced on 21st May 2001 pursuant to the Employment Rights (Dispute Resolution) Act 1998, as an alternative to the ET.
New developments from 2014, before being able to lodge an employment tribunal claim, potential claimants must first notify Acas of their intention to claim so that Acas can offer the opportunity to resolve the issue using Early Conciliation.
Arbitrators are appointed by the Acas Arbitration Panel and hearings are held in private.
Arbitrator makes an award and is generally binding.

11. ACAS
This scheme can be used where an employee has a complaint which is solely for unfair dismissal, provided that:
There are no jurisdictional questions relating to unfair dismissal, e.g. whether there was a dismissal, or whether the employee has the necessary length of service to bring a claim.
The case does not raise any complicated legal issues.
Both the employer and employee agree to choose arbitration
Both parties sign an Arbitration Agreement either through Acas (written Consolidated Agreement) or via an independent adviser (written Settlement Agreement formerly known as a Compromise Agreement), which must conform to the requirements of the Employment Rights Act 1996.
Note that 75% cases are now settled or withdrawn without ever reaching a tribunal hearing. .

12. ACAS
In reaching a decision on the fairness of the dismissal, the arbitrator takes account of the Acas Code of Practice on Disciplinary and Grievance Procedures and the Acas Advisory Handbook, Discipline at Work, the evidence of the case, along with his/her own knowledge and experience of good relations
If the Arbitrator finds the dismissal unfair, he can award re-instatement, re-engagement or compensation.
The award is binding, enforceable by the courts, but confidential to the parties and Acas.
Limited right to appeal.

13. The Central Arbitration Committee (CAC)
CAC receives arbitration requests from ACAS to resolve disputes.
CAC resolve disputes under the Transnational Information and Consultation of Employees Regulations 1999 (appeals are only heard on matters of law) and Employment Relations Act 1999 (ERel Act).

14. Key Websites Website Links Via SurreyLearn
Employment Tribunals Online
ACAS
Employment Appeal Tribunal

15. Employment News, Legislation and Case Law
“More than 600 construction workers whose names appeared on an industry-wide blacklist have moved closer to securing damages which could total tens of millions of pounds.” –
The Guardian

16. Preparation for Today – Task 01
Between now and the next session, log into the Lawtel or Westlaw website and locate the following cases: Halford v United Kingdom (1997) 24 E.H.R.R. 523 Autoclenz Ltd v Belcher [2011] ICR 1157
Each student needs to have read the case prior to the class.

17. Autoclenz Ltd v Belcher [2011] ICR 1157
Handout 01 via SurreyLearn

18. Autoclenz Ltd v Belcher [2009] EWCA Civ 1046
Handout 02 via SurreyLearn

19. Halford v United Kingdom (1997) 24 E.H.R.R. 523

20. Employment Law Employment Status – Employee, Contractor, Self-employed

21. Employment Law & The Law of Contract
The relationship between employer and employee is based on the common law of contract.
The ERA 1996, s 230(1) defines ‘employee’ as ‘an individual who has entered into or works under…a contract of employment’.
‘Contract of employment’ itself is defined as ‘a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing (s 230(2)).
Break down the unit as defined within the handout

22. Employment Law Employment Rights Act s.230
s 230(1) defines ‘employee’ as ‘an individual who has entered into or works under…a contract of employment’.
Break down the unit as defined within the handout
Source:

23. Test for the distinction of “What is an employee”
Importance of distinction:
Establishing vicarious liability
Tax and National Insurance purposes
Protection under certain provisions of the Health and Safety at Work Act 1974
Entitlement to statutory sick pay, statutory maternity pay, jobseekers allowance, protection of wages.
Unfair dismissal, redundancy payments and many other protections for the employee who is engaged within a contract of employment.
Break down the unit as defined within the handout

24. Employment Law – 14th October 2015 Reading & Preparation

25. Session 02 – Questions for Preparation
Using your reading list and available legal databases, you need to establish the meaning of the following employment tests: The Control Test, The Integration Test, Economic Reality Test, Mutual Obligation Test
Case law to help you may include:
Yewens v Noakes (1880) 6 QB 530
Limland v Stephens (1801) 3 Esp 269
Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] A.C. 1
Cassidy v Ministry of Health [1951] 2 K.B. 343
Lee Ting-Sang v Chung Chi-Keung [1990] ICR 409
Carmichael v National Power [1999] 1 W.L.R. 2042
O’Kelly v Trusthouse Forte [1983] 3 W.L.R. 605
Hellyer Brothers Ltd v McLeod [1987] 1 W.L.R. 728

26. Test for the distinction of “What is an employee”
Tests for the distinction:
Statutory case law over the years has defined a number of tests to establish whether a worker had a contract of employment.
A distinction for can be see within the traditional test between:
a contract OF service (employee); and
a contract FOR services (independent contractor).
Note courts will often apply multiple tests to define the employment relationship.
The Tests:
The Control Test
The Integration Test
Economic Reality Test
Mutual Obligation
REVENUE & CUSTOMS COMMISSIONERS v (1) P JONES (2) E JONES (3) S JONES (T/A HOLMESCALES RIDING CENTRE) (2014) EAT. – H/O
Break down the unit as defined within the handout

27. Employment Law – Session 02 Questions for Preparation – Q1
Go through the timetable of events.

28. Test for the distinction of “What is an employee”
The Control Test
The Integration Test
The Tests:
Economic Reality Test
Mutual Obligation

29. Test for the distinction of “What is an employee”
The Control Test
The Tests:

30. Test for the distinction of “What is an employee”- THE TESTS
The Control Test:
Earliest legal test was that of control. It was defined that a worker had a contract of employment if he or she was subject to the command of the employer in the manner of the works.
Yewens v Noakes (1880) 6 QB 530 Bramwell L.J. stated that: “a servant is a person subject to the command of his master as to the manner in which he shall do his work”
Break down the unit as defined within the handout

31. Test for the distinction of “What is an employee”- THE TESTS
The Control Test Continued:
The test of Yewens v Noakes today is far more difficult as the position of the employee is often in the position that they may possess a skill or craft for which they are employed and that the employer may not be in a position to instruct how the work should be undertaken or carried out.
Break down the unit as defined within the handout

32. Test for the distinction of “What is an employee”- THE TESTS
The Control Test Continued:
Extracting the precedent of a case is key to learning:
Limland v Stephens (1801) 3 Esp 269
Lord Kenyon CJ Stated that: “If a master of a ship by inhuman treatment compels a sailor to quit a ship, it is not such a desertion as shall amount to a forfeiture of his claim for his wages for the voyage performed.” “There are reciprocal duties between master and servants. From the servant, is due obedience and respect; from the master, protection and good treatment. Desertion is a forfeiture of wages; but if the captain conducts himself in such a way as puts the toiler in that situation; that he cannot without damage to his personal safety continue in his service, human nature speaks the language-a servant is justified in providing for that safety.”
Break down the unit as defined within the handout

33. Test for the distinction of “What is an employee”- THE TESTS
The Control Test Continued:
Extracting the precedent of a case is key to learning:
Limland v Stephens (1801) 3 Esp 269
Lord Kenyon CJ Stated that: “There are reciprocal duties between masters and servants. From the servant, is due obedience and respect; from the master, protection and good treatment.”
Break down the unit as defined within the handout

34. Test for the distinction of “What is an employee”- THE TESTS
The Control Test Continued:
Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] A.C.1
Gibb v United Steel Companies Assizes (Carlisle) [1957] 1 W.L.R. 668
In deciding the question which of several employers of a servant owes him a duty at common law, the breach of which renders him liable to pay damages for injuries sustained by the servant, the proper test is: Who has the right at the moment to control the manner of the execution of the acts of the servant?
Break down the unit as defined within the handout

35. Test for the distinction of “What is an employee”- THE TESTS
The Control Test Continued:
Whittaker v Minister of Pensions and National Insurance [1967] 1 Q.B The greater degree of control which is exercised by the employer, the more likelihood that a contract of service is in place.
Break down the unit as defined within the handout

36. Test for the distinction of “What is an employee”- THE TESTS
The Control Test Continued:
Nora Beloff v Pressdram Ltd [1973] 1 All E.R The greater the skill required for an employee’s work the less significant is control in determining whether the employee is under a contract of service.
Break down the unit as defined within the handout

37. Test for the distinction of “What is an employee”
The Control Test:
The greater the skill required for an employee’s work
the less significant is control in determining whether
the employee is under a contract of service.
Defined within
Nora Beloff v Pressdram Ltd [1973] 1 All E.R. 241 A.C.
Hitchcock v Postoffice [1980] I.C.R. 100
Where a shop is divided partly as a private business, and partly as a sub-post office, the sub-postmaster, although subject to a degree of Post Office control, is not employed under a contract of service by the Post Office.

38. Court of Appeal – Judgment Troutbeck SA, [2013] EWCA Civ 1171
Go through the timetable of events.

39. Test for the distinction of “What is an employee”
The Control Test
The Integration Test
The Tests:

40. Test for the distinction of “What is an employee”- THE TESTS
The Organisation / Integration Test:
This test addresses whether the employee’s work is an integral part of the employers business.
If the employee’s work is just merely an accessory to the employers business then the employee will be deemed an independent contractor.
Break down the unit as defined within the handout

41. Test for the distinction of “What is an employee”- THE TESTS
The Organisation / Integration Test:
Cassidy v Ministry of Health [1951] 2 K.B. 343
Denning, L.J Stated:
“It has been said... that the liability for doctors on the permanent staff depends on whether there is a contract of service, and that must depend on the facts of any particular case. I venture to take a different view. I think it depends on this:
Who employs the doctor or surgeon?
Is it the patient or the hospital authorities?
If the patient himself selects and employs the doctor or surgeon,... the hospital authorities are, of course, not liable for his negligence, because he is not employed by them. Where, however, the doctor or surgeon, be he a consultant or not, is employed and paid, not by the patient, but by the hospital authorities, I am of opinion that the hospital authorities are liable for his negligence in treating the patient. It does not depend on whether the contract under which he was employed was a contract of service or a contract for services".
Break down the unit as defined within the handout

42. Test for the distinction of “What is an employee”
The Organisation / Integration Test:
This test addresses whether the employee’s work is an integral part of the employers business. OR
If the employee’s work is just merely an accessory to the employers business then the employee will be deemed an independent contractor.
Break down the unit as defined within the handout
Cassidy v Ministry of Health [1951] 2 K.B. 343 Denning, L.J
Stevenson Jordan & Harrison v McDonnell & Evans [1952] 1 T.L.R. 101

43. Test for the distinction of “What is an employee”
The Control Test
The Integration Test
The Tests:
Economic Reality Test

44. Test for the distinction of “What is an employee”- THE TESTS
Economic Reality / Multiple Test:
Ready Mixed Concrete (South East) Ltd v Minister of Pensions & National Insurance [1968] 2 QB 487
Test by McKenna J
Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173
Test applied by Cooke J
Lee Ting-Sang v Chung Chi-Keung [1990] ICR 409
Lord Griffiths distinction.
Carmichael v National Power [1999] 1 W.L.R. 2042
This case states that there must be mutuality of obligation between the parties, as evidenced by the existence of a contract, and there must exist a sufficiency of control by the ‘employer’ over the worker and only if both of these conditions are satisfied should a court go on to find that a contract of employment exists.
Break down the unit as defined within the handout

45. Test for the distinction of “What is an employee”
The Control Test
The Integration Test
The Tests:
Economic Reality Test
Mutual Obligation

46. Test for the distinction of “What is an employee”
Mutuality of Obligation:
Must be mutuality of obligation between the parties, as evidenced by the existence of a contract, and there must exist a sufficiency of control by the ‘employer’ over the worker and only if both of these conditions are satisfied should a court go on to find that a contract of employment exists. Carmichael v National Power [1999] 1 W.L.R. 2042
Break down the unit as defined within the handout

47. Test for the distinction of “What is an employee”- THE TESTS
Mutual Obligation Test:
Previous tests have addressed the nature of the relationship between the contracting parties but the doctrine of consideration imposes one other requirement.
This requirement is that there be mutual obligation between the two parties
Break down the unit as defined within the handout

48. Test for the distinction of “What is an employee”- THE TESTS
Mutual Obligation Test:
Freedland (The Contract of Employment, Clarendon, 1976, pp21-22) as follows states:
At the first level there is an exchange of work for remuneration. At the second level there is an exchange of mutual promises of future performance. The second level – the promises to employ and to be employed – provides the arrangement with its stability and its continuity as a contract. The promises to employ and to be employed may be of short duration or may be terminable at short notice; but they still form an integral and most important part of the contract. They are the mutual undertakings to maintain the employment relationship in being which are inherent in any contract of employment.
Break down the unit as defined within the handout

49. Test for the distinction of “What is an employee”
Mutual Obligation Test:
Hellyer Brothers Ltd v McLeod [1987] 1 W.L.R – No mutual obligations between the parties
O’Kelly v Trusthouse Forte [1983] 3 W.L.R Not employees but independent contractors Casual staff are employees, this involves questions of degree and fact (Term Regulars)
Nethermere (St Neots) Ltd v Gardiner [1983] I.C.R Degree of obligations between the parties. Part-time workers using machines from a company for sewing, no fixed hours, paid for the work that they did. O’Kelly v Trusthouse Forte applied.
Break down the unit as defined within the handout

50. Employment Law – Session 02 Questions for Preparation – Q2
Go through the timetable of events.

51. Employment Law MAN3131 Assignment 01 – EBookBinders Limited
Available now on SurreyLearn.
Due Date: Mon 2nd November.
Week 4 – Note One 2 One Support

52. Employment Law MAN3131 Assignment 01 – EBookBinders Limited
How will my script be marked?

53. Assignment Requirements
Know your legislation
Know your KEY case law
Be able to critically evaluate
Be able to view and discuss two sides of an argument competently
Apply an HR perspective

54. Employment Law – Session 02 Questions for Preparation – Q3
Go through the timetable of events.

55. Employment Law Preparation and Reading for this week
Chapters 3 & 10:
Understand The contract of employment: rights and obligations. Express and implied terms of the contract, including privacy and confidentiality, restrictive covenants and mutual trust and confidence.
Complete all preparation questions within your group to present and discuss next week.

56. 14/10/15 – Stephen Dale – Employment Law MAN3131
MAN3131 University of Surrey Employment Law Session 02 – The Contract of Employment 14th October 2015
14/10/15 – Stephen Dale – Employment Law MAN3131