Employment Practice

Key points §   A person enters into a contract of employment (or contract of service) with an employer when he (or she) agrees to undertake specified duties (and assume specified responsibilities) in return for an agreed wage or salary. The two essential features of a contract of employment are control and mutuality of obligation. There is 'control' when an employer tells the employee what to do, when to do it and how it is to be done (or, in the case of a highly-qualified and skilled employee, the manner in which it is to be done). But the most important ingredient is 'mutuality of obligation'. §   As a rule of thumb, there is 'mutuality of obligation' a.      when an employer undertakes to provide a person with work on specified days of the week, for a specified number of hours, and for a specified or indefinite period; and b.     the person in question accepts the employer's offer of employment and undertakes to carry out that work with du...

Key points To qualify for most statutory rights in employment, an employee must be in continuous employment and must have been continuously employed for a specified period. That period is expressed in months or years - a month meaning a calendar month; and a year, a year of 12 calendar months. The rules are laid down in Part XIV, Chapter I (sections 210 to 219) of the Employment Rights Act 1996 - reproduced as the Appendix to this handbook. Following the decision of the House of Lords in R v Secretary of State for Employment, ex parte Equal Opportunities Commission [1994] ICR 317, and the subsequent introduction of the Employment Protection (Part-Time Employees) Regulations 1995, part-time employees are nowadays entitled to the same statutory employment rights as their full-time colleagues, and are subject to the same qualifying conditions for access to those rights. See also the section titled Part-time workers elsewhere in this handbook. The continuity of a peri...

Key points Meaning of 'closed shop' In simple terms, a closed shop (or union membership agreement) is an understanding or agreement between an employer and one or more trade unions whereby the employer agrees not to employ (or to continue to employ) any person who is not a member of one or other of the trade unions party to that agreement. Protection of job applicants and existing employees Nowadays, the closed shop is a legal irrelevancy. It can no longer be used as an excuse for denying a person a job or for dismissing (or disciplining) a person who refuses to be or remain a member of a trade union (even if the union in question is recognised by the employer as having bargaining rights in respect of a particular class or group of employees). Furthermore, an employer cannot lawfully demand a payment from a non-union employee (or presume to make a deduction from that employee's wages or salary) as an alternative to the payment of trade union dues. In sho...

Key points Under the common law, an employer cannot be compelled either to employ a particular job applicant or to reinstate or re-engage someone who has been dismissed. As Lord Davey remarked in Allen v Flood [1898] AC 1: 'An employer may refuse to employ [a workman] for the most mistaken, capricious, malicious or morally reprehensible motives that can be conceived, but the workman has no right of action against him.' And again: 'A man has no right to be employed by any particular employer, and has no right to any particular employment if it depends on the will of another.' Although an employer retains his (or her) common law right to pick and choose the people he employs, there may be a price to pay for exercising that right. In short, an employer can be ordered to pay compensation to a job applicant if a tribunal or court is satisfied that the employer acted unlawfully in refusing (or deliberately omitting) to employ the person concerned on grounds...

Employees who are called up for active service in the Armed Forces, under the Reserve Forces (Safeguard of Employment) Act 1985, are entitled to resume their employment on their return - effectively their contract continues during their service. Obligations Most employees protected by the law covered by this section are volunteers. However, recently whenever there has been a need to use such volunteers, their participation in active service has been made compulsory by the State so that it is clear that their rights are protected under the above Act. There is no obligation on the employer to pay for the time away from work - the reservist will be paid by the State during that period. On returning from service, a reservist must re-apply to his or her employer in writing by the third Monday after the end of the service, giving a date within the period ending with the sixth Monday after the end of the service for return to their previous job. The reservist must be taken back on terms no le...

Traditionally there has been no requirement to allow employees to see the records that the employer generates concerning them - although this has been changed by the passing of the DATA PROTECTION Act 1998. However, for some time legislation has governed the provision of medical records and reports, and grants to employees rights of access to them. Access to Medical Reports Act 1988 This Act primarily covers reports originated prior to employment - for example, where an employer asks a prospective employee to undergo a medical examination. A person has a right of access to any medical report concerning him which is prepared by his own doctor. If the subject requests access to the report then the doctor may not send the report to the company for 21 days which gives time for the subject to inspect the report. If the subject disagrees with anything in the report then (s)he has a right to request alteration or, should the doctor refuse, to attach their objections or alterations to the repo...

Advantages and Disadvantages Homeworkers tend to have a lower incidence of absence and higher morale, than those working at traditional workplaces, with the added advantage of a greater number of productive hours. Advantages for the Employee avoidance of the stress and fatigue of travelling; being fresh when starting; avoidance of travelling costs; flexibility to carry out domestic obligations; avoidance of normal workplace distractions (noise, irrelevant conversation, phone bells and conversations, other interruptions etc.); and contribution to domestic living costs if a dedicated room is made available and 'rent' is paid. Advantages for the Employer ultimately less office and/or other space (which, almost certainly, will be more expensive than domestic space); lower rates of pay and oncosts (particularly for city commuters) as no allowance needs to be made for travel costs; and lower overheads (e.g. reduced catering, car parking and other ancillary space, lower security costs...

1. Where such a comprehensive policy is deemed unnecessary (or where there is a need to give addition or specific advice regarding accepting gifts and/or hospitality) a policy such as the following may be appropriate. 2. The [company] operates under known and advertised terms of business and, unless there are specific reasons and the negotiation has board approval, will not alter such terms. 3. The [company] insists that at all times the highest standards of service are given to every customer and supplier. It expects similar treatment from its suppliers. Accordingly, there should be no need for any marks of appreciation to be either given or received regardless of whether such appreciation is made in money, kind or other items of value. 4. Without exception, gifts of money may not be either given or received and in such event, any employee found culpable of either giving or receiving cash will be regarded as in breach of the [company's] rules in a matter of gross misconduct, and d...