1、EmploymentContracts and ContextsObjectivescentral place of contract in Er-Ee relationshipcontract & labour market legal regulationsocio-econ. exchange - open-ended contract not like commercial contractsjob contracts & managerial power/authoritywider issues delivery of “performance & managerial compe

2、tenceindividual + work group control/defencesmotivation + loyalty, commitmentpotential for workplace disagreementreference to statutory protectionscontracts in a global contextThe Individual in a Labour Marketindividual is best judge of how to satisfy own-interestsjob contract - freely entered intoc

3、ontract (offer, acceptance, consideration) is negotiated/agreedbut not an equal balance in personal service relationshipsubordination to reasonable & legitimate authority of employerfreedom of contract between consenting parties but only in terms of individual equality before the lawequality underpi

4、nned by managerial prerogative therefore NOT equalemployee is junior partneremployer determines organisation of work and standards (reasonable) THUS individual negotiation + freedom exists only on surfaceOffer, acceptance, considerationintention, reasonable content, legal & genuine consentcontract o

5、f service (master-servant) open-ended relationship continuous or fixed-term or temporary or apprenticeshipContrast “contract for services (commercial contractors, self employed) precise terms of performance for each partycommon law and statutory duties of employer of employeeimplied terms (general o

6、bligations)since 1963 significantly shaped by statute lawcontrol test, integration testthe “borrowed employee?Concept of contractexpress or implied, verbal or in writingContract of employment is “usually concluded orally by people who rarely think out still more rarely express, any terms 1940subject

7、 to statutory regulation of employment relationshipChanges to the Contract?by mutual consent? within scope of effort-reward relationship (open -ended, master-servant)?reasonable within employers operational discretion?Vicarious liability Negligenceemployer liable for negligent/wrongful acts omission

8、s of employee whilst acting in course of employment. The Control test. collective agreementsFormation of contract of employmentEmployment Rights Act 1996Consolidates law. Earlier Acts repealed in whole or in partthe Employment Protection (Consolidation) Act 1978Wages Act 1986Trade Union Reform Emplo

9、yment Rights Act 1993Unaffected legislationEqual Pay Act 1970Sex Discrimination Act 1975Race Relations Act 1976Transfer of Undertaking (Protection of Employment) Regulations 1981Disability Discrimination Act 1995New law e.g. Race Relations (Amendment) Act 2000ERA 1996 Right to minimum statementiniti

10、al particulars within 2 months changes communicated within 1 monthemployer/employee names, start, job title or brief description. Place of work?rate of pay, period, how paid, hours, conditions e.g. meals, hols + holiday pay + calculationsickness, injury sick pay pensionlength of notice due to/from e

11、mployeewhere non-permanent - the term or end datedisciplinary rules, code/procedure, arrangements for handling grievances (unless uniformity of treatmentNotice of proceedings and preparednessExemption from unfair dismissal provisions?Natural Justice“What am I being accused ofRight to be heard, put m

12、y side of the case, query evidence and have own evidence considered even for gross misconduct.Confront my accuser? Witness statements?Right to representation. Where practicable, TU. rep or fellow employeeInstant vs. summary dismissal (field court)take account of employees information before deciding

13、avoid hasty conclusions e.g. assumptions about prior disciplinary warnings, say, poor time-keepingAppeals?Exemption from unfair dismissal provisions?No difference principleOverlook procedural defects if employer shows that - on balance - the same decision would have been taken? NO! More likely to be

14、 U/FD. Stick to procedure.Caught “inflagrante delicato? Stick to procedure e.g. + ve drugs test (airline or oil-rig)?“It is alleged that employee did something outside work?Establish the truth. Do not dismiss on hear-say.Has Employer genuine belief in the misconduct?reasonable evidence and investiga

15、tion?Company Policy Framework - 1published and common knowledge? Verbal?Dos and donts? Express & implied?MINOR (corrective feedback)general irritationsweak-fit between duties/standards & performancecompanys value system?implied from general, routine, common-sense behaviour?outside workplace?MAJOR (f

16、orever undermines root of relationship)accumulated minor breaches - no improvement?trust relationship cannot be re-built (one-sided Tango?)criminal actions?outside workplace?Verbal warning- notedWritten warning- maybe FinalDismissal- or otherCompany Policy Framework - 2Informal/formal splitGrievous

17、breach - less requirement for all steps?Recorded warnings with guidance on corrective action & warning shelf-life Appeal? Via internal grievance procedure?punishment fits crime?representationmanagers involved at each stagecorrespondence & documentationInformal advice“a word in your earFormal stagesE

18、xternal?Internal grievance procedure Appeal? FormalVerbal warningWritten warningDismissalSummary Dismissalwith/without noticesuspension - with or without pay?transfer, demotion, fine?Final written warningpull back from dismissalnext step dismissal? Appeal?Written warningformal, recorded during heari

19、ng. clear communication of consequencesVerbal warning - Issued formallyaway from workplace - confidentialAide memoir - time, reason, what was communicated, next step, response.Feedback, staff appraisal? Normal supervision. Separationof roles (controller/friend?)Company Policy Framework - 3Reasonable

20、ness and sufficient reasonEmployer must act reasonably in all the circumstances in treating the reason as a sufficient and valid reasoncircumstances incl. employer size & resourcesReasonableness depends onHOW the dismissal was carried out andif employer acted reasonably leading up to the decision to

21、 dismiss e.g. for misconduct or capability - was there a warning, chance to improve? If redundancy, was employee considered for alternative work?Qualifiers for small firmsFairness testsufficient reason based on equity + substantial meritsmultiple reasons - go for the principal ones!burden of proof n

22、eutral but balance weighs on employerET is NOT an arbitrator - cannot substitute own views of “reasonable for the employersWhat would a reasonable employer have done in the circumstancesthe right course of action to adopt?band of employersWas it fair?teacher slaps childs legs?refusal to work 3 month

23、s of Sundays?Short case studies 1weekly staff rota pinned on the factory notice board by the supervisor. The rota lists the shift days for each operative. It is pinned up on the Tuesday of preceding week without pany policy statement on equal opportunities lists expectations regarding how staff shou

24、ld behave and speak towards each other.A friend who you regularly have lunch with is very upset. Her manager spoke abruptly to her about “reading a magazine and writing personal letters using the companys word processor when she should have been working. She was waiting for her supervisor to pass on

25、 new items of work. Other people in the office - also use the companys word processing facilities.The warehouse supervisor asked Braat Shah - a fork-lift truck driver - to work overtime on Saturday from 8.00 - 16.30. Braat agreed but then did not turn up nor did he phone in. The supervisor could not

26、 complete an important order - the reason for the overtime. Braat was seen shopping in Tescos at 11.30.a union representative has asked the departmental manager for time off with pay to attend the unions annual conferenceShort case studies 2a van driver refuses to drive a van allocated to her for a

27、normal delivery round. She argued that the tyres were worn and that when braking the van tended to veer. The supervisor points out that the van had passed its MOT. The mechanic had checked the vehicle.a biscuit-line manager was angry with an elected H&S rep. who was called away from her job by the c

28、ompany H&S officer to join an investigation into a warehouse incident. On return, the manager gave the rep. a stern ticking off and later refused a request for a days leave. He argued that she had given insufficient notice (4 days normally required). It was Friday. The rep. wanted the next Monday of

29、f. Short case studies 3Employment Tribunal Claimssend ET1 within 3 months from effective termination date (+ 1 day)can lodge complaint whilst working noticeif without notice - termination effective on the day Ee. actually leaves work.Walk out without giving basic contractual/statutory notice?Claims

30、out of time? Was it reasonably feasible to present a claim? Information on UFD comes to light outside time period?Conciliationcopy of ET1 to ACAS. Conciliation officer appointed. Parties contacted to secure voluntary settlementPre-trial assessment - full costs may be payable if go to full hearing an

31、d frivolous. Possible 150 depositAt full hearing. Complainant must show that he/she has been dismissed unless conceded.RemediesReinstatement or re engagementTribunal can make RorR order or make a compensation award Reinstatement - employer to respond as if employee not dismissed. Make good pay/benefits, improvements etc.Re-engagement No specific performance. Employer decides.Comparable, suitable employment Does complainant want it? Tribunal specifies terms - job, award, arrears, seniority, pens