Introduction to employment law Terminology

1. Introduction to employmentlawTerminology Anne Brunon-Ernst (UniversityPanthéon-Assas)

2. List of Terms • Labour code • Labour inspectorate • Formal source • Informal source • Collective agreements (c.a.) • Omneseffect • Workers’ representation • Trade union (T.U.) • Incorporation • Contractof employment • Consideration • Worker • Employed • Self-employed • Test • Mutuality of obligation • Minimum wage • Whistleblowing • Express terms • Impliedterms • Termination • Frustration • Agreement • Repudiation • Resignation • Dismissal • Wrongfuldismissal • Unfairdismissal • Redundancy • Reinstatement • Reengagement • Compensation • Award • Industrial action • Immunity • Direct discrimination • Indirect discrimination

3. Whatisemploymentlaw? • Employmentlawis the set of rulesgoverning the employmentrelationship. • It operates as a framework for the operation of all parties in the labour market: • Employers • Workers • Trade unions • Trade union members

4. Sources of employmentlaw CIVILIAN SYSTEMS • Labour code = set of lawsgoverning the employmentrelationship • Labour inspectorate = Government service which deals with the inspection of workplaces to seethat labour codes are beingcorrectlyimplemented COMMON LAW SYSTEM • Formal sources • Common law • Contract of employment • TU immunity • Legislation • Collective laissez faire • EmploymentRightsAct (ERA) 1996 • EC Law • Informal sources • - Collective agreements

5. Collective Agreements • - Definition: A collective agreement is an agreement about wages and working conditions between management and workers’ representatives • Aim: regulate • Relations betweenemployers’ organisations and TUs • Terms of individualcontracts of employment • Not legallybinding • Unlessincluded in the individualcontract • No ergaomneseffect= no right or obligation towards all • See s.178(1)of the Trade Union and Labour Relations (Consolidation) Act 1992

6. Trade Union and Worker Trade union: ‘an organisation (whethertemporary or permanent) whichconsistswholly or mainly of workers of one or more descriptions and whose principal purposeinclude the regulation of relations betweenworkers of that description or those descriptions and employers or employers’ associations’ s.1(a) of the Trade Union and Labour Relations (Consolidation) Act 1992 Worker: ‘In thisActworkermeans an individualwhoworks, or normallyworks or seeks to work – Under a contract of employment, or Under anyothercontractwherebyheundertakes to do or performpersonallyanywork or services for another party to the contractwhois not a professional client of his …’ s.296 of the Trade Union and Labour Relations (Consolidation) Act 1992

7. Industrial action Industrial: adjective relative to work Industrial dispute: argument between management and workers Industrial action: Stepsworkerstake to pressdemands on management Industrial tribunal: court whichdecides in disputes betweenemployers and employees or trade unions FromDictionary of Law, 3rd edn, London, Peter CollinPublishing, 2002

8. Incorporation • Agreement between collective parties • Parties to the agreement are union and employers • Principle of privity of contract • Not legallyenforceable • 2. Incorporation • = terms of the collective agreement become part of the contact between • employers and employees • Implied incorporation: both parties have accepted the provisions as binding (seeJoel v Cammel Laird (1969) ITR 206) • BUT onlyapplies to union members (seeSingh v British Steel Corporation (1974) IRLR 131) • B. Express incorporation: statement in the contract to the effectthat the relevant provisions shallbe part of the individual’scontract (see ss.1-6 of EmploymentRightsAct 1996).

9. immunity The trade union willbeimmune fromtortiousliabilityif the action iswithin the golden formula and the torts listed in s.219: ‘An actdone by a person in contemplation or futherance of a trade dispute is not actionable in tort on grounds only: That itinducesanotherperson to break a contract or interferes or inducesanotherperson to interferewithits performance, or That itconsists in histhreateningthat a contract (whether one to whichheis a party or not) willbebroken or its performance interferedwith, or thathewillinduceanotherperson to break a contract or interferewithits performance’ s.219 of the Trade Union and Labour Relations (Consolidation) Act 1992

10. The contract of employment • Offer • Acceptane • Intention • Consideration • Express terms • Impliedterms

11. EmployeE, self-employed ORworker? • Differentterms, differentrights • 1. Mutuality of obligation • = the employer isobliged to give me work and I ambliged to acceptit • Employee = contract of service = contract of employement • Self-employed= contract for services • 2. No mutuality of obligation • Workereither in a contract of employment or in a contract to providepersonal services • National minimum wage • Protectedagainstdismissal in case of whistleblowing

12. Tests • Three tests to determine the status of a person: • -Control test: degree of control by the employer • Integration test: integrated in the business • Multiple test: whobears the risk?

13. O'Kelly and Others v Trusthouse Forte plc[1984] 1QB90 O’Kelly and someothercasualcatering staff wereclaimingthat Trust House Forte (“THF”) hadunfairlydismissedthem for an inadmissible reason. The preliminary issue in the case waswhethertheywereemployeesworkingundercontracts of service or independentcontractorsworkingundercontracts for services. Facts: THF kept a list of some 100 casualcatering staff, known as “regulars”, whoworked for themat the Grosvenor House Hotel in London. THF employed permanent staff but alsoengagedcasuals to providecatering and other services in relation to their business of hiring out rooms in the hotel for privatefunctions. The bar manager maintained a list of some 40 winebutlers and 60 food service waiters and waitresses - the “regulars”. Othercasual staff numberingbetween 200 and 300 workedlessregularly. Mr O’Kellywas one of the winebutlers and heworkedvirtuallyeveryweek for hoursvaryingfrom as little as 3 in someweeks to as many as 57 in others. Some of the otherfactorstakenintoaccount by the industrial tribunal and whichpointed to a contract of service were as follows: Capital not invested; No opportunity to gain or lose; THF exercisedcontrol part of the THF organisation whenworking; Clothing and equipmentprovided by THF; Paidweekly in arrears; Disciplinary and grievanceprocedure in place; Holiday pay or incentive bonus. Factors not inconsistentwitha contract of serviceincluded: Paidonly for workactuallyperformed – no regularwage or retainer; No sickpay, not in pension scheme, no fringebenefitsunlikeregularemployees; No regular or assuredworkinghours Factorsinconsistentwith a contract of service included: Contract terminable without notice by either party; Applicantshad right to decidewhether or not to acceptwork; No obligation on THF to providework; Mutual intention for self-employment; Custom in industry - casualsengagedundercontract for services. Decision:TheIndustrial Tribunal foundthatbecause of the absence of mutuality of obligation the “regulars” were in business on theirownaccount and werethereforeworkingundercontracts for services. From http://www.hmrc.gov.uk/manuals/esmmanual/ESM7100.htm

14. Express term Start date of employment Job title Fixedterm of indefinitetermcontract Place of work Hours Rate of remuneration Date of payment Holidays Sickpay Pension Collective agreements, if any

15. Impliedterms • Courts implytermsinto the contract to help the contract to develop over the years • Dutiesimplied on employers • Providework? • Paywages • Mutual trust and confidence • Safety • Dutiesimplied on employees • Cooperate • Obey • Reasonableskill and care • Confidentiality

16. Secretary of State for Employment-v- ASLEF (No 2) [1972] 2 QB 455 Railwayemployeeshad been instructed by their unions to "work to rule" and more specifically to ban overtime, Sunday and restdayworking. "Working to rule" meantgiving an unreasonablyliteral construction to certain requirements of the railwayrule book (such as satisfyingoneselfthat the engineis in order) and ignoringothers, such as the rulethat one shouldmakeevery effort to facilitate the working of the trains and preventavoidabledelay. And this course of conductwaspursuedwith the intention of bringing the system to a halt. The question waswhether the conduct of the union amounted to industrial action. Held: The employeeswere not obliged to work on Sundays and restdays and refusing to do so, even for the purpose of being obstructive, was not a breach of contract. On the other hand, therewas a limited obligation uponindividualemployees to work 9 hour shifts instead of 8 whenrostered to do so and the ban on thisovertimewas a breach of contract. In addition, the "work to rule" was in breach of a reasonable construction of the rules. So the instructions involvedbreaches of contract by the employees. http://www.swarb.co.uk/lisc/Emplm19701979.php

17. exercise Secretary of State for Employment-v- ASLEF (No 2) [1972] 2 QB 455 Fill in the gaps withwordsfrom the list: implied; work to rule; contract;interests; employed; faithfully; excess;unsafe; obligations; terms Buckley LJ saidthat the   ’(1)’ involved "breaches of an (2) term to serve the employer (3) within the requirements of the (4). It does not meanthat the employer couldrequire a man to do anythingwhichlayoutsidehis (5) under the contract, such as to work (6) hours of work or to work an (7) system of work or anything of thatkind, but itdoesmeanthatwithin the (8) of the contract the employee must serve the employer faithfullywith a view to promotingthose commercial (9) for whichheis (10). From http://www.swarb.co.uk/lisc/Emplm19701979.php

18. Termination of a contract • Frustration = situation where the terms of the contractcannotpossiblybefulfilled (illness, imprisonment etc.) • Agreement • Repudiation = employer or employee commit a fundamentalbreach of contract • Resignationby the employee = act of giving up a job • Dismissal by the employer = removal of an employeefrom a job • Constructive dismissal= situation where an employeeleaveshis job voluntarily but because of pressure from the management • Unfairdismissal= removingsomeonefrom a job by an employer whoappears not to be acting in a reasonableway • => remedyunderstatute in an industrial tribunal • Wrongfuldismissal= removingsomeonefrom a job for a reasonwhichdoes not justifydismissal and whichis in breach of the contract of employment => remedyundercontract in a County Ct

19. Redundancy ERA 1996 s.139(1) providesthat:"For the purposes of thisAct, an employeewhoisdismissedshallbetaken to bedismissed by reason of redundancy if the dismissalisattributablewholly or mainly to (a) the factthathis employer has ceased, or intends to cease (i) to carry on the business for the purposes of which the employeewas employed by him, or
 (ii) to carry on that business in the place where the employeewasso employed, or (b) the factthat the requirements of that business (i) for employees to carry out work of a particularkind, or 
 (ii) for employees to carry out work of a particularkind in the place where the employeewasemployed by the employer have ceased or diminished or are expected to cease or diminish"

20. remedies • Reinstatement = to the same job, if unfairdismissal (rarelyawarded) • Reengagement = to a different job, but equivalent, if unfairdismissal (rarelyawarded) • Compensation • Basic award (in respect to the period of service) • Compensatoryaward (loss of future employment prospects) • Additionalaward/specialaward: rarelyused

21. Discrimination -Discrimination= treatingdifferent people in differentways -Direct discrimination= illegal discrimination wheresimilar cases are treateddifferently or wheredifferent cases are treated in the sameway Except GOQ: exhaustive list of derogations -Indirect discrimination= discrimination by applying an abstract principle, sothat the resultisthat people of different sexes are treateddifferently