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Terms of Employment

Terms of Employment. Sources of terms and conditions Express terms terms agreed by the parties statement of employment particulars such as salary rates, working hours, holidays, sick pay and pension rights formal rules and procedures such as those governing discipline and dismissal

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Terms of Employment

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  1. Terms of Employment Sources of terms and conditions • Express terms • terms agreed by the parties • statement of employment particulars such as salary rates, working hours, holidays, sick pay and pension rights • formal rules and procedures such as those governing discipline and dismissal • Impliedterms • terms implied by custom or practice • terms implied by common law

  2. Implied Terms • Duties of Employer • to pay the employee • to provide work • to provide for the safety of the employee • to take reasonable care and not to injure employee’s health • safe plant and equipment • safe system and method of work • competent staff • to maintain good faith/mutual trust and respect • to take care in providing references

  3. Workplace Stress • Barber v Somerset County Council (2004) Key questions: • whether psychiatric harm to a particular employee is reasonably foreseeable • whether the employee has suffered injury attributable to stress at work; Key principles • employer usually entitled to assume that employee can withstand the normal pressures of the job (unless made aware of some particular problem or vulnerability); • Employer generally entitled to take at face value what he is told by employee

  4. Workplace Stress • Barber v Somerset County Council (2004) House of Lords confirmed rules on workplace stress - an employee can claim damages for workplace stress if • employer knew that he/she might suffer mental damage or • employee had warned employer that this might occur

  5. Working Time Regulations 1998 Primarily health and safety provision Introduces limits on working time and rest entitlement: working time – any period during which a worker is working at the employer’s disposal and carrying out activities or duties, including periods of training • 48 hour limit on average working time • daily rest entitlement • weekly rest entitlement • rest breaks • annual leave • number of exclusions*, exceptions and right of individuals to opt out

  6. Working Time (Amendment) Regulations 2003 Junior doctors: • amongst a number of sectors originally excluded from the Working Time Regulations 1998 • rules now extended to include all other categories • exceptionally, provisions dealing with junior doctors rules will be phased in between August 2004 and August 2009

  7. Implied Terms • Duties of Employees • to render personal service • to obey reasonable and lawful instructions • to exercise reasonable care and competence • to maintain fidelity (faithful service) • cooperation • honesty • not to compete • not to misuse confidential information • to account

  8. Implied Terms • Dismissal from employment • Fairness of dismissal • conduct • capability • redundancy • some other substantial reason

  9. Dismissal from Employment • Dismissal for fundamental breach • conduct of the employee justifying immediate termination of employment without notice • incompetence • gross misconduct such as wilful disobedience, violence at work, dishonesty and other criminal offence

  10. Disciplinary Procedures • Employing Authorities • right to suspend or dismiss an employee on grounds of gross misconduct, incompetence or incapacity (ill-health) • able to refer matters of competence and conduct to professional regulatory body

  11. Disciplinary Procedures Random drug/alcohol tests: • O’Flynn v Airlinks The Airport Coach Company Ltd, EAT/0269/01, 15 March 2002 • South West Trains Limited v Ireland, Appeal No. EAT/0873/01, 2 July 2002 • Dismissal for failure to comply with a company zero drugs and alcohol policy upheld by Employment Appeal Tribunal • Dismissal not considered to be a breach of Human Rights

  12. Disciplinary Procedures Constraints on private life: • Whitefield v GMC (Privy Council 90/2001) PC considered conditions imposed on GP by GMC for his continued registration • abstinence from alcohol, to submit to random blood and urine tests and to attend Alcoholics Anonymous not regarded, either together or individually, as interference with his right to respect for private life • claim to respect for private life was reduced to the extent that as a doctor his private life was in contact with public life and other potential interests • “right” to an unrestricted social life had to give way to the wider public interest in ensuring that he did not present a risk to his patients • conditions were lawfully made by a public authority, pursued a legitimate aim, (protection “of health”, “for the rights and freedoms of others”), and was “necessary” for a “pressing social need” and proportionate

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