Employee Relations 11 Lecture Slides.pdf

Employment Law I

1. Employment Law I
-Institutions involved in Employment Law
-Employees versus Independent contractors
EMPLOYEE RELATIONS
DR EBENEZER ODURO ANTIRI

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-Employment law serves as the foundation for understanding the
dynamic relationship between employers and employees within the
context of the workplace.
-It encompasses a complex framework of legal principles, regulations,
and statutes that govern various aspects of the employment
relationship.
Introduction
E M P L O Y M E N T L A W

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-This course on employee relations delves into the critical
components of employment law, providing insights into the rights
and responsibilities of both employers and employees.
-Through an exploration of key topics, such as employment
contracts, discrimination, labor unions, and workplace safety,
students will gain a comprehensive understanding of the legal
framework that shapes contemporary employment practices and
relations.
Introduction
E M P L O Y M E N T L A W

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-Courts and tribunals play a pivotal role in the realm of employment
law, serving as the primary venues for the resolution of disputes and
the interpretation of labor-related regulations.
-These institutions are an essential component of the legal framework
that safeguards the rights and obligations of both employers and
employees.
-Within the judicial system, employment-related cases are heard and
adjudicated, ensuring that justice is served in matters ranging from
workplace discrimination to wrongful termination.
Institutions Involved in Employment Law
E M P L O Y M E N T L A W

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-Employment-related litigation typically begins at the lower courts,
where initial disputes are heard and assessed.
-These lower courts include district courts or county courts,
depending on the jurisdiction.
-Should a party involved in the dispute be dissatisfied with the
judgment at this level, they may opt to appeal the case to higher
courts, such as the appellate or circuit courts, seeking a
reconsideration of the decision based on legal arguments.
Courts and Tribunals
I N S T I T U T I O N S I N V O L V E D I N E M P L O Y M E N T L A W

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-Moreover, specific tribunals, such as labor or employment tribunals,
are established in many jurisdictions to address employment
disputes.
-These tribunals offer a more specialized and expedited process for
resolving employment-related issues, with members who possess
expertise in employment law.
Courts and Tribunals
I N S T I T U T I O N S I N V O L V E D I N E M P L O Y M E N T L A W

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-Effectively we have 2 tribunals which have the jurisdiction to hear
employment cases and appeals
i. Employment Tribunals
-Types of Claims heard include:
-Any claim based on an employment statute, any breach of contract
based on common law or breach of any other aspect of the contract
connected with
Types of Tribunals
I N S T I T U T I O N S I N V O L V E D I N E M P L O Y M E N T L A W

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-Decisions will be based on the majority.
-A claim must generally be brought within 3 months of the effective.
date of termination of the contract of employment.
Employment Tribunals
I N S T I T U T I O N S I N V O L V E D I N E M P L O Y M E N T L A W

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-The EAT is a wholly appellate court, no cases begin here.
-The president of the EAT will either be a High Court Judge or a
Court of Appeal Judge
-The Court of Appeal (Court of Session) hears appeals from the EAT,
but note that permission to make the appeal must be given by the
EAT or court.Employment Appeals Tribunals (EAT)
Employment Appeals Tribunals (EAT)
I N S T I T U T I O N S I N V O L V E D I N E M P L O Y M E N T L A W

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-The president of the EAT will either be a High Court Judge or a
Court of Appeal Judge
-The Court of Appeal (Court of Session) hears appeals from the EAT,
but note that permission to make the appeal must be given by the
EAT or court.
Employment Appeals Tribunals (EAT)
I N S T I T U T I O N S I N V O L V E D I N E M P L O Y M E N T L A W

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-Decisions will be based on the majority.
-A claim must generally be brought within 3 months of the effective.
date of termination of the contract of employment.
Employment Tribunals
C O U R T S A N D T R I B U N A L S

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-People employed under a contract of employment or a ‘contract of
service’ as such a contract is commonly known, are employees.
-People who contract to provide services for another otherwise than
under a contract of employment are known as independent
contractors”
Employees versus independent contractors
E M P L O Y M E N T L A W

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-There are a variety of terms which are implied into contracts of
employment which are not implied into contracts under which
services are supplied by independent contractors.
-Employers may be liable for delicts (wrongs) committed by
employees during the course of their employment
Importance of Distinction
E M P L O Y E E S V E R S U S I N D E P E N D E N T C O N T R A C T O R S

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-Statutes confer employment protection rights only upon employees.
-Statutory protection against unfair dismissal
-Entitlement to compensation if they are made redundant if certain
conditions are met
-A statutory tight to a minimum period of notice of termination of
their employment contracts
Importance of Distinction
E M P L O Y E E S V E R S U S I N D E P E N D E N T C O N T R A C T O R S

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-Rights to maternity pay and leave
-Rights to paid paternity
-The right to time off for public duties
-The right to statutory sick pay
-Access to important social security and welfare benefits
-The right to be consulted about changes affecting the employer
Importance of Distinction
E M P L O Y E E S V E R S U S I N D E P E N D E N T C O N T R A C T O R S

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-Over the years the courts have evolved several tests to distinguish
employees and independent contractors.
1.The Control Test.
2.The Integration Test.
3.Economic reality Test.
4.Mutuality of Obligation Test.
Tests of Distinction
E M P L O Y E E S V E R S U S I N D E P E N D E N T C O N T R A C T O R S

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-During the 19th century it would have been relatively easy to
determine whether someone was an employee.
-The courts had developed what was know n as the control test. This
test held that employees count only be told what to do but they
could also be told how to do it.
-Independent contractors could be told what purpose to achieve and
they could then use whatever method they thought fit to achieve
that objective
The Control Test
T E S T S O F D I S T I N C T I O N

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-A further test used by the courts is to ask the question whether a
worker is part of the employers organisationi.e. is he/she fully
integrated or where he is in ‘business on his own account’
-A worker here may have to show that he provided his own
equipment, is exposed to financial risk, has the ability to hire his
own staff, undertakes managerial and administrative jobs, has built
up a client base and has a range of fees that he will charge clients
for his services.
The Organisation/ Integration Test (known as
the Lord Denning Test)
T E S T S O F D I S T I N C T I O N

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-This test is more concerned with the overall reality of the working
relationship rather than merely being swayed by labels.
-Many different factors will be taken into account by a judge in
determining whether someone is an employee or an independent
contractor.
Economic reality Test
T E S T S O F D I S T I N C T I O N

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-Some of the following questions may be asked:
-How much control does the employer exercise over the employee?
-Does the worker provide his/her own equipment or does the
employer provide this?
-Can the worker take the decision of hiring additional workers to
assist in completion of the task?
-Will the worker be exposed to some degree of personal financial
risk?
Economic reality Test
T E S T S O F D I S T I N C T I O N

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-Will the worker be able to make a personal profit from the work
undertaken?
-What label have the parties attached to the relationship?
-Does the employer deduct income tax and national insurance
contributions from the workers salary?
-Is the worker duty-bound to accept work as and when the employer
makes it available?
Economic reality Test
T E S T S O F D I S T I N C T I O N

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-Difficult questions often arise in relation to agency workers and
causal workers.
-This is an on-going issue but one factor considered is the mutuality
of obligation test.
-If the employer has no duty to provide work, and the worker has no
duty to accept work then it is likely that there will be no contract of
employment while the workers are not actually at work.
Mutuality of Obligation Test
T E S T S O F D I S T I N C T I O N

23. Thanks!
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