1. Employment Law Training Course Community Matters 27 September 2008 Why employment status matters Who is my employee? Contract of employment Types of employment Distinction between employee and worker Employment process Employment rights Case studies What’s on the horizon

2. Who is my employee? Is there a contract? Is it a contract of employment Difference between a contract of service and a contract for service Consider types of employment Is there continuity of employment? Is the individual an employee or a worker?

3. What is a contract? Agreement between two or more parties  Oral or in writing  Can be more than one document  Express and implied terms Consideration  Mutuality of obligation  Promises exchanged, or  something of value for promise  Adequacy Contractual intent  To create legal relationship  Objective test

4. What is a contract? 1.Irreducible minimum obligation 2.Mutual trust and confidence Duties Control Equipment provided by employer Time and place Organisation Personal service Does the employee assume any financial risk? Administration Other trappings of employment Economic reality

5. Types of employment Not just permanent, full-time staff Part time  Many employment rights  Proportionality Casual  Mutual obligation  Continuity - not regularity  Drift Seconded worker  Clarity of contract with supplier

6. Types of employment (continued) Agency staff Can become your staff where  Implied contract is a necessity for the arrangement to continue  Connection with agency is removed Where taken on permanently either-  Start date when first started working, or  Break continuity of employment

7. Employee or worker? Contract of employment otherwise Worker - defined as: “a person who works under- a contract of employment; or any other contract whereby he or she undertakes to do or perform personally any work or services for another party to the contract” Worker covered by: National Minimum Wage Act 1998 Working Time Regulations 1998 Sex Discrimination Act 1975 Race Relations Act 1976

8. Employment rights Immediate written statement of employment particulars the national minimum wage statutory sick pay time off for public duties e.g. jury service time off to look for work or make arrangements for training when being made redundant time off for antenatal care, ordinary maternity leave right not to be unfairly dismissed on ground of maternity time off for domestic emergencies

9. Employment rights (continued) protection under Health & Safety Regulations notice periods e.g. termination of employment trade union rights, e.g. time off for trade union duties and activities right to be accompanied by a trade union official or work colleague to a disciplinary or grievance meeting rights under the Working Time Regulations 1998, e.g. rest breaks (daily and weekly) rights under the Data Protection Act 1998 rights under the Human Rights Act 1998

10. Employment rights (continued) rights under the Public Interest Disclosure Act 1998 not to be discriminated against or to suffer a detriment by reason of seeking to enforce that right, in relation to-  colour, race, nationality, or ethnic or national origin  sex or sexual orientation  marital status  religion or belief  disability  age

11. Employment rights (continued) If part-time, the right not to be treated less favourably in their contractual terms and conditions than comparable full-timers, unless different treatment is justified on objective grounds If employed on a fixed term contract, the right not to be treated less favourably than comparable permanent employees because of their fixed-term status, unless the difference can be objectively justified After 26 weeks continuous employment- additional maternity leave request flexible working arrangements paternity leave adoption leave

12. Employment rights (continued) After one year’s continuous employment  the right not to be unfairly dismissed  The right to take parental leave After two year’s continuous employment, the right to receive redundancy pay

13. The employment process 1.Recruitment Job description Person specification Advertisement Application form Draw up shortlist Interview  Preparation  Interview panel  Method Offering the job Take up references Are vulnerable clients involved?

14. The employment process 2.Contract of employment The actual terms and conditions of employment may include: express terms implied terms  obvious terms  necessary  custom and practice terms incorporated by reference - these are terms that exist in other documents (e.g. agreements with trade unions) which are referred to in the contract and to which the employee has access, e.g. on a notice board.

15. The employment process Written statement of terms and conditions of employment s.1 Employment Rights Act 1996 Use as basis of contract Two month time limit Good practice Open ended Fixed term Part-time Casual

16. Changes to contract of employment Wording of contract – is consent needed? Employee consent Imposition of change The employment manual