Law - Chapter 11: Employment, data protection, and intellectual property law
Elaborate on the following (being one of 6 grounds on which a dismissal is capable of being fair): Qualifications
'Qualification' means any academic or technical qualifications relevant to the position that the employee holds. There must be a contractual obligation (express or implied) to hold the relevant qualification in order that a dismissal for lack of it can be considered fair The lack of qualification must be sufficiently serious and it may arise from one particular incident or series of incidents
If an employee's contract contains a mobility clause (enabling employer to require them to work at other places than at their present place of employment), such a requirement will not constitute redundancy. However, the tribunal has held that the fact there is a mobility clause (?...)
... does not mean that 'the place where the employee was employed' is extended to include every place where they could be employed
The relevant procedures for these purposes (regarding procedural irregularity in terms of dismissal) is the Code of Practice on disciplinary and grievance issues published by (?...) Broadly speaking, this provides for (?...) The Code does not lay down a mandatory or rigid set of rules and does not prescribe time limits in which steps must be taken. Rather, it sets out a set of standards which should be adhered to in any internal policy or procedure drawn up by the employer and provides for steps to be taken promptly and without reasonable delay The Code is designed to encourage informal resolution, and the emphasis is very much on communication and reconciliation, aimed at avoiding the need for proceedings at an employment tribunal. The Code does not apply to (?...) Acas has a discretion to offer conciliation services in the event of any dispute before it is presented to the tribunal and a duty to conciliate during any tribunal proceedings. Note that if a disciplinary action had already been taken before 6th April 2009, the previous law will apply. Meaning (?...)
... issues published by the Advisory, Conciliation and Arbitration Service (Acas). ... this provides for investigation before taking action, notification to the employee of the nature of the disciplinary measures, a meeting to be held (where the employee has the right to be accompanied), and for the employee to be able to appeal against any decision made against him ... the Code does not apply to redundancy dismissals and non-renewal of fixed term contracts ... it is likely that a 'statutory dismissal and disciplinary procedure' will govern the procedure that the employer must follow in dismissing or taking disciplinary action. Any breach of that procedure, if applicable, will render any dismissal automatically unfair
If the employer relies on ill health as the grounds of incapability (in trying to establish fair dismissal), there must be (?...)
... proper medical evidence. The employer is entitled to consider their own business needs.
Except in the most flagrant cases, it is not reasonable for an employer to dismiss an employee without first (?...)
... warning them that if they continue or repeat what has happened at least once they are likely to be dismissed. The tribunal might conclude that demotion, or some other step, might have been fair where dismissal isn't
In order to pursue a claim for unfair dismissal, how long must an employee have been continuously employed for?
2 years, full-time or part-time (This period of continuous employment can be reduced without breaking the continuity, for example, time spent on strike, or on service in the armed forces) (Unless they began before 6 April 2012, where they may bring an unfair dismissal claim after only 1 year)
A dismissal may be unfair if it is carried out in breach of a relevant procedure relating to workplace dispute resolution. In these circumstances, the tribunal may increase any award by up to (?)% as a result of the employer's unreasonable failure to comply with that procedure The tribunal may also reduce an award by up to (?)% as a result of any unreasonable failure by the employee
25% 25%
Notice (for leaving employment) may be given without specific reason for so doing, unless required in the contract. The notice must specify the date of its expiry. It is a matter of negotiation by the employer and the employee how much notice is to be given by either party in order to terminate the contract. In the absence of such a provision, it is required under common law that a party gives reasonable notice, depending on the employee's position, nature of the job etc. Either party may waive their entitlement to notice, or accept a sum in lieu of notice. During a period of notice, an employee is entitled to pay at a rate not less than the average of their earnings over the previous 12 weeks. Required notice periods are laid out in statute also. What are these minimum periods of notice required, dependent on length of continuous service with the employer?
>/= 1 month but < 2 years = not less than 1 week >/= 2 years but < 12 years = not less than 1 week per year >/= 12 years = not less than 12 weeks
Regarding remedies for unfair dismissal, compensation may be awarded in three categories (all subject to statutory maximums that update often):
A basic award: - Calculated by reference to employee's length of service and age - Liable to be reduced if offer of reinstatement is refused, or they behave unreasonably - Also reduced if a redundancy payment is made - Basic award is made for unfair dismissal regardless of the loss suffered by the employee, and there is no duty on the employee to mitigate any loss A compensatory award: - Being such amount as the tribunal considers to be 'just and equitable in the circumstances, having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer (and taking account of the basic award) - This will be in respect of any additional loss of earnings, expenses and benefits and will be assessed on common law principles of damages for breach of contract, including a duty on the employee to take reasonable steps to mitigate any loss - Statutory maximum does not apply to unfair dismissal on whistleblowing or reporting health and safety grounds An additional reward: - Can only be awarded if the employer does not comply with an order for reinstatement or re-engagement and does not show that it was impracticable to do so - Comprises between 25 and 52 weeks pay (In addition, a tribunal may order the employee to pay consequential losses to the employee to reflect any financial loss suffered as a result of the employer making unauthorised deductions or failing to make redundancy payments)
Generally, what is the only effective remedy for wrongful dismissal? And how is this sum calculated?
A claim for damages, based on the loss of earnings Measure of damages is usually the sum that would have been earned had proper notice been given, together with any other actual or potential benefits to which the employee was entitled. (The employee is under a duty to mitigate their loss by, say, seeking other employment. The 'reasonableness' (or otherwise) of the employer's conduct will not be relevant, nor will questions of contributory conduct by the employee. The only issue is whether or not the employer is in breach of the contract of employment In rare cases an application might be made for an injunction to restrain a breach of contract or declaration as to what the employee's rights are. Both of these remedies are equitable and therefore in the court's discretion. Of course in the event of a breach of contract by the employer that falls short of a wrongful dismissal, the employee may sue for any loss suffered)
What is Intellectual Property (IP)?
A form of intangible asset that a company creates through the application of skill and knowledge of its employees
Give some examples of breaches which have led to claims of constructive dismissal? (3)
A reduction in pay A complete change in the nature of the job A failure to provide a suitable working environment
What is required in an employment contract?
Agreement between the parties (written or oral) (change requires permission from both parties) Consideration An intention to create legal relations (As is the case with any other legal contract)
What is the scope and purpose of the Data Protection Act 2018?
Applies when personal data is held on computer-based information systems or manual files. All organisations are covered by the act, large/small, profit/non-profit, incorporated/unincorporated Personal data covers any information (including opinions) related to an identifiable living individual. This means any living person who can be directly or indirectly identified by reference to an identifier such as a name, reference number, location, or online identifier
When considering constructive dismissal, the breach must be considered (?...) Where there is more than 1 reason for employee's resignation, (?...) Where an employee is dismissed, with or without notice, or where a fixed term contract is not renewed, they are entitled to request a written statement of the reasons for their dismissal within (?) days
Breach must be considered... a serious one ... the claimant must prove that the employer was 'an effective cause' rather than 'the effective cause' Within 14 days (provided they have been employed for at least 2 continuous years)
Redundancy pay is calculated on the same basis as the basic award for unfair dismissal (ie, according to age and length of service). A person may claim a redundancy payment, provided they: (3) They must show that they have been: (2) They must apply to the employment tribunal within 6 months from the relevant date of termination (although tribunal has discretion to allow a late claim within next 6 months). They will not be entitled to a redundancy payment if they: (3) When there is a difference between the terms and conditions of a new contract and the previous contract, the employee is entitled to a (?) week trial period in the new employment. If either party terminates the new contract during this period, it is treated as a case of dismissal for redundancy at the expiry date of the previous employment. The employee can also still bring a claim for unfair dismissal
Can claim, provided they: - Are an 'employee' within the Employment Rights Act 1996 (self-employed and partners not covered) - Have been continuously employed for at least 2 years at the relevant date - Follow the procedure for making a claim set out in the Act Show that they have been: - Dismissed by reason of redundancy - Laid off or kept on short time frame for four or more consecutive weeks or 6 weeks in a period of 13 weeks (laid off being a week in which they earn nothing due to lack of work) (Short time meaning earning less than half a normal week's pay) Not entitled if they: - Are guilty of misconduct which would justify dismissal - Refuse a reasonable offer to renew their contract - Unreasonably refuse an offer of suitable alternative employment in the same capacity, at the same place and on the same terms and conditions at their previous employment, not being perceived as lower in status 4 week trial period
Once the employee has shown that they were dismissed, it is then for the employer to show the principal reason for the dismissal and that it was one of the potentially fair reasons. If the employer cannot satisfy the tribunal in this was, the dismissal is unfair. If the tribunal is satisfied that the reason was one justifying dismissal, then it must decide whether the employer acted reasonably. Both criteria must be satisfied in order for dismissal to be fair. What are the 6 grounds on which dismissal is capable of being fair?
Capability Qualifications Employee's misconduct Redundancy Statutory restriction Some other substantial reason
In the case of a dismissal for want of capability of qualifications, reasonableness by the employer can be demonstrated by, e.g.: (4)
Consultation with the employee to determine areas of difficulty Allowing a reasonable time for improvement Providing training if necessary Considering all alternatives to dismissal
List some examples of protection for intellectual property? (5)
Copyright: - Automatic protection is given for IP that is written, in the form of music, film, art, and internet content. The protections offered are: - Written, dramatic, musical, and artistic work: 70 years from the author's death - Sound and music recording: 70 years from when first published - Films: 70 years after the death of the director, screenplay author, and composer - Broadcasts: 50 years from when first broadcast - Layout of published editions of written, dramatic, or musical works: 25 years from when first published Design right: - Automatic protection is given for an object's design - Lasts for 15 years after the design was created, or 10 years after it is sold, whichever is earlier Trademark: - Protection for product names, jingles, and logos. Must be applied for and granted - Lasts for 10 years Registered design: - Relates to the design of a product, such as its packaging, patterns, colours, and decoration. Protection must be applied for and granted - Lasts for 25 years Patent: - Applies to inventions and products, such as machines or parts of machines. Protection must be applied for and granted - Lasts for 20 years
The Data Protection Act 2018 is an Act which sets out the UK's approach to data protection. The Act embodies the principles and rights of the EU's General Data Protection Regulation (GDPR) which came into force May 2018. Act is wider in scope than GDPR. What are 'data controllers'? What are 'data processors'? What are 'data subjects'?
Data controllers determine the purpose and means of processing personal data Data processors are responsible for processing personal data on behalf of a controller Data subjects are identified individuals (not companies) to whom personal data relates (It is important to note that although data controllers may delegate the processing of data to a data processor, they are not relieved of the responsibility to ensure that the data is processed in accordance with the Act)
When does a 'partner' count as an employee of the company?
Depends on the facts. A traditional equity partner with a capital stake in the firm, involved in the management of the business, and who shares in profits and losses, is not an employee. Nor is a fixed share equity partner. A salaried partner, however, is likely to be an employee, for employment law purposes
What are the implied duties on the part of the employee into any contract of employment (under Common law)? (6)
Duty of faithful service: - Faithful service/fidelity to employer - E.g., can't work for a competitor in spare time, can't frustrate the commercial objectives of employer - If an employee accepts personal commission from suppliers on orders supplied to employer, they can be justifiably dismissed and liable to account to the employer for the commissions To obey lawful and reasonable orders: - Unless they are unlawful - Unless they expose themselves to a personal danger - Unless it is to do something outside their contract Not to misuse confidential information: - Won't necessarily cease when employment ceases - If an employee invents or writes something as part of their employment, the right/patent normally belongs to employer To exercise reasonable care and skill: - Must demonstrate reasonable competence, care and skill in the performance of their work (in line with skill and experience the employee professes to have) Personal service: - Must not delegate their duties without employer's express or implied consent Trust and confidence: - There is a mutual obligation imposed on both parties and is based on respect and consideration for each other. An employee should not, for example, make unjustifiable complaints or false accusations
There are a number of exemptions from the Data Protection Act 2018 which means that data protection principles and the data subject's rights will not apply: (4)
Employers may process data without employee consent providing they are acting in compliance with employment law (e.g., processing payroll) Academic institutions, such as Universities, are exempt from the rules on data processing, provided the data is processed for academic purposes (e.g., as part of a research project) Scientific and historical research organisations are exempt where meeting the principles would impair their core activities Individual rights are limited where they can be abused to commit crimes, disrupt legal proceedings, or otherwise disrupt public authorities and regulators
Unfair dismissal is governed by what Acts?
Employment Rights Act 1996, amended by the Employment Act 2008
What categories of employee are excluded from the statutory unfair dismissal code?
Generally speaking, persons employed to work outside Great Britain Employees dismissed whilst taking unofficial strike, or other industrial action
Once the employment tribunal is of the view that the dismissal occurred for a potentially fair reason, it is then required to review the circumstances and to decide whether 'on the basis of equity and the substantial merits of the case', the employer acted reasonably in dismissing the employee. Whether the employer has acted reasonably or unreasonably is a question of fact depending on all the circumstances, including the size and resources of the business. The tribunal will consider: (3)
Have relevant procedures been followed? These may include internal procedures, contractual provisions, or a code of practice relevant to the employment. In particular, the tribunal will have regard to the Acas code of practice in this area in deciding whether the employer behaved reasonably Did the employer take all circumstances into consideration? E.g., is an inexperienced employee is struggling to do their work, the employer is expected to help by advice or supervision in the hope they improve What would any reasonable employer have done?
Elaborate on the following (being one of 6 grounds on which a dismissal is capable of being fair): Some other substantial reason
Ie, some other substantial reason that could justify the dismissal of an employee holding the position that the employee held. Thus dismissal has been considered fair where, for example: - The employee was married to one of their employer's organisation - The employee refused to accept a change of shift working, made in the interests of the business and with the agreement of a large majority of other employees - The employee's alleged paedophile activity substantially risked the reputation of their public sector employer (even though the employee was not convicted of any offence) Following the abolition of the default retirement age, an employer who wished to dismiss an employee on retirement grounds will need to satisfy this ground of 'some other substantial reason'. They will need to show that the retirement age is proportionate and objectively justified and also a fair procedure has been followed
Elaborate on the following (being one of 6 grounds on which a dismissal is capable of being fair): Redundancy
If an employee is dismissed mainly or only on the ground of redundancy, they may claim remedies for unfair dismissal if they can show one of the following: - There were one or more other employees in similar positions who might have been made redundant, and that they were selected for redundancy in breach of a customary arrangement or agreed procedure - They were selected for a reason connected with trade union membership A redundancy selection procedure should be in conformity with good industrial relations practice, ie: - The employer should give as much warning as possible of impending redundancies - The employer should consult with the trade union as to the best means of achieving the desired management result - It should be possible to check criteria for selection against such things as attendance records, efficiency at the job and length of service - The employer should ensure that the selection is made fairly - The employer should consider whether an offer of alternative employment can be made
Elaborate on the following (being one of 6 grounds on which a dismissal is capable of being fair): Capability
If the employer dismisses for want of capability on the part of the employee, the employer has to establish that the lack of capability at the time of dismissal was of such a nature and degree as to justify a dismissal, taking into account: - What the contract requires - The general standard of performance of their employee in this trade - The previous standard of performance of the dismissed employee themselves 'Capability' is to be assessed by reference to skills, aptitude, health, or any other physical or mental quality The lack of capability must be sufficiently serious and it may arise from one particular incident or series of incidents
Elaborate on the following (being one of 6 grounds on which a dismissal is capable of being fair): Employee's misconduct
It is not necessary to prove that the employee is guilty of the alleged misconduct, only that the employer genuinely and reasonably believes them to be Various types of misconduct have been held to justify dismissal, including abusive language, drink and drug abuse, theft and dishonesty, violence, downloading pornography, racial and sexual harassment and persistent lateness or absenteeism
The Data Protection Act 2018 enacts the following data protection principles from GDPR: (6)
Lawfulness, fairness, and transparency: - Must be valid ground for holding data. Data must be used fairly, and with clarity/honesty in how it is used Purpose limitation: - Purpose for recording data must be recorded and made clear to the data subject from the start. Purpose must be specified, explicit, and legitimate. If to be used for a new purpose, consent must be obtained, unless there is legal ground for using the data Data minimisation: - Data must be adequate (sufficient to fulfil the purpose), relevant (linked rationally to the purpose), and not excessive (limited to what is necessary for purpose) Accuracy: - Reasonable steps must be taken to ensure data is not incorrect or misleading. Ongoing processing must be accurate and kept up-to-date. Date found to be inaccurate etc must be corrected Storage limitation: - Data should not be kept for longer than is necessary for the purpose for which it was processed. Should be a retention policy that can be justified. Data no longer needed should be destroyed or anonymised) Integrity and confidentiality: (security) - Data processing must take appropriate security measures as regards risks that might arise. Appropriate technical and organisational measures should be put in place to protect the data
The principle duties implied on employers by statute include: (4)
Pay: - Pay, and contractual employment terms, must be equal between genders (unless there is a 'genuine material factor' that exists that justifies difference) Health and Safety at Work Act 1974: - Employer must ensure continuing good health, safety and welfare of their employees as far is practicable - To provide and maintain plant and systems of work that are safe and without risk - To make arrangements to ensure safe use, handling, storage, and transport of articles/substances - To provide adequate information, instruction, training, and supervision - To maintain safe places of work and ensure that there is adequate access in and out - Provide a safe and healthy working environment (Contravention of this Act is an offence punishable by an unlimited fine and/or 2 years' imprisonment. If offence is committed by a company, any director etc responsible will be guilty and liable) Discrimination: - Not to discriminate on grounds of race, sex, disability, religion or belief, sexual orientation or age Parental bereavement leave: - Parents who lose a child under the age of 18 (including stillbirths after 24 weeks) are entitled to 2 weeks paid leave
When courts are deciding whether someone is an employee or an independent contractor, the wording of the contract is taken into account, but is not conclusive. Instead, the courts will apply a multiple test, taking into account many factors (aiming to determine on balance, can the person said to be working 'on their own account' or are they better described as an 'employee'). What are the other factors to be considered, after the essential 3? (11)
Personal performance: - Can performance be delegated, to what extent? - More freedom to delegate = less likely employee - Total freedom would mean this condition is not met Degree of control: - To what extend can employer tell the employee what to do, and how and when to do it? - Greater the degree of control = less likely employee Contractual provisions: - Courts will consider the terms of any contract - E.g., if holiday is allowed = more likely employee Tools and equipment: - Who provides and maintains needed for the job? - Responsibility with employer = more likely employee Uniform: - Do they wear uniform/logo belonging to employer? - If yes = more likely employee Employer's support staff: - Can the employee use the support staff? - If yes = more likely employee Payment of tax and NI: - Is employee paid gross or is tax deducted at source? - Deduction of tax/NI = more likely employee Financial responsibility: - Do they undertake any financial responsibility for investment of risk? Do they profit from sound management of performance of their task? - More responsibility = less likely employee Sole 'employer': - Do they work for more than one person? - More employers = less likely employee Length of service: - How long has there been a relationship? - Longer relationship = more likely employee Nature of the claim brought before the court: - In cases of health and safety, there might be public interest in recognising an employee/employer relationship because of duties owed to the employee
When courts are deciding whether someone is an employee or an independent contractor, the wording of the contract is taken into account, but is not conclusive. Instead, the courts will apply a multiple test, taking into account many factors (aiming to determine on balance, can the person said to be working 'on their own account' or are they better described as an 'employee'). What are the essential elements, or conditions, that must be present in order for the contract of service (and therefore employer/employee relationship) to exist? (3) (Keep in mind even if these elements are present, it does not mean there WILL be a contract of service)
Personal service: - Employee must have agreed to provide their own work and skill in the performance of a service for that employer - If an employee is able to delegate that performance in limited circumstances, this does not mean this condition is not met Control: - There must be some element of control exercisable by the employer over the employee - Means there must be a contractual right of control over the employee, not simply about who controls their day-to-day work Mutuality of obligations: - Must be an obligation on the employer to provide work and an obligation on the employee to do that work ('casual workers' who works as and when needed cannot be an employee, as there is no 'mutuality of obligations'
Some reasons for dismissal are automatically unfair, including? (7)
Pregnancy, or pregnancy-related illness A spent conviction under the Rehabilitation of Offenders Act 1974 Trade Union membership of activities Dismissal on transfer of an undertaking (unless they are 'economic, technical, or organisational reasons' for justifying the dismissal) Taking (or proposing to take) steps to protect themselves or others where they believe there to be serious and imminent danger Seeking to enforce statutory rights (e.g., relating to minimum wage, working time regs, or Sunday working) Making a protected disclosure under the Public Interest Disclosure Act 1998 (In these cases, the employee is not required to have 2 years' continuous employment)
What are the 2 remedies for unfair dismissal?
Reinstatement: - An order that the employee may return to the same job without any break in continuity - In deciding whether to exercise these powers, the tribunal must take into account whether the complainant wishes to be reinstated and whether it is reasonably practicable and just for the employer to comply (such orders are infrequent) Re-engagement: - An order the the employee is given new employment with the employer (or their successor or associate) on terms comparable with old job, or otherwise suitable) - Employment Appeal Tribunal has rules that an order for re-engagement should not be made if there has been a breakdown in confidence between parties - Compensation may be awarded in three categories (all subject to statutory maximums that update often):
Due to the nature of digital intellectual property, it is quite easy for unscrupulous parties to steal and profit from it. Examples of misuse include: (3)
Ripping or downloading music for redistribution Coping DVDs for resale Plagiarising written material, such as in textbooks, for inclusion in other publications
What is an 'employee'?
Someone who is employed under a contract of service, ie, a contract of employment, which can be express or implied and oral or in writing
What is an 'independent contractor'?
Someone who works under a contract for services and is also described as 'self-employed'
Where the reason for dismissal is automatically unfair, e.g., when the employee is pregnant, or if the reason for dismissal is the employee's political opinion or affiliation, there is no continuous employment requirement for an unfair dismissal claim. The employee must make a claim to an employment tribunal within 3 months of the effective date of termination, that is to say: (3) And the employee must show: (2)
That is to say: - Where there is a termination by notice, the date on which the notice expires - Where there is termination without notice, the date on which termination takes effect - Where an employee's fixed term contract is not renewed, the date on which that term expires Employee must show: - That they are a qualifying employee - That they have in fact been dismissed
A dismissal is caused by redundancy if the only or main reason is that: (3)
The employer has ceased, or intends to cease, to carry on the business for which the employee was employed The employer has ceased, or intents to cease, to carry on his business in the place where the employee was employed The requirements of that business for employees to carry out work of a particular kind, or for them to carry out the work in the place where they were so employed, have ceased or diminished
Within 2 months of the beginning of employment, the employer must give to an employee a 'written statement of prescribed particulars' of their employment, which includes: (11)
The name of employer and employee The date on which employment began Whether any service with a previous employer forms part of the employee's continuous period of employment The scale or rate of pay and the intervals at which it is to be paid Hours of work (including 'normal working hours') The title of the job that the employee is employed to do (or a brief job description) Any holiday and holiday pay entitlement Sick leave and sick pay entitlement Pensions and pension schemes Length of notice of termination to be given on either side Details of disciplinary procedures (or reference to where they can be found) (The last 4 of these may be given in separate documents. These particulars do not constitute an employment contract, though they are persuasive evidence of what the contract contains. If employee has written contract of employment covering these points, it is not necessary to provide them with particulars. If employer fails to comply with these requirements the employee may apply to an employment tribunal for a declaration of what the terms should be. Tribunal may award compensation to the employee claiming unfair dismissal if the particulars are incomplete)
Give some examples of Intellectual Property? (4)
The names of products or brands Inventions The design of look of products Items that the employees wrote, made, or produced
Dismissal for the purposes of an unfair dismissal claim may occur in one of three situations:
The non-renewal of a contract for a fixed term or specific task A termination by the employer, with or without notice A constructive dismissal
The Data Protection Act 2018 enacts the following rights of data subjects from the GDPR: (8)
The right to be informed: - About the collection and use of their personal data - Includes why, for how long, and who it is shared with - Notification must be given when data is collected, or within a month if from another source The right of access: - Can request information held on them verbally, or in writing, and must be provided within 1 month (and usually, free of charge) The right to rectification: - Have right to correct wrong information, or have incorrect information deleted - Erasure request can be in writing or verbal - This right only applies in certain circumstances, and the individual must be responded to within 1 month The right to restrict processing: - Means right to have data held, but not processed - Can request verbally or in writing - Right only applies in certain circumstances, and the individual must be responded to within 1 month The right to data portability: - Right to obtain data that they have given to the data controller and to reuse it in a different service - E.g., data held in a banking app can be requested to transfer to a different banking app provider The right to object: - Object to the processing of their data - For direct marketing, individual has absolute right to object. Other times, right can be refused if there is a compelling reason to do so - Objection can be verbal or in writing, and response must be given within 1 month Rights in relation to automated decision making and profiling: - Granted rights where data held about them is used to make decisions about them, or profiling etc - There are strict circumstances where these processes can be used and the individual has a right to information about the processing and to request human intervention or to challenge decisions made following the processing
The employer will be justified in dismissing an employee summarily (ie, with not notice, or insufficient notice) in certain circumstances, in which case they incur no liability. The following examples of conduct would justify summary dismissal: (5)
The wilful refusal to obey a lawful and reasonable order Gross misconduct, in connection with the business (or outside it if it is sufficiently grave), for example, acceptance of a secret commission, disclosure of confidential information, or assaulting an employee Dishonesty, where the employee is in a position of trust Gross or persistent negligence (and a lesser degree of neglect may suffice for senior employees), e.g, where an airline pilot landed their plane in a way that caused alarm amongst passengers and crew Breach of an express term of the contract or work rules where the employee has been made aware that such a contravention will not be tolerated (Whether a dismissal is justified will be a question of fact based on the standards of ordinary people and the standards prevailing at the time (and decisions from old cases may be distinguished on this basis. Summary dismissal also occurs where an employer is unable to continue to employ the employee, e.g., where employer dies, company dissolved, or work closed etc)
In order to establish constructive dismissal, an employee must show that: (3)
Their employer has committed a serious breach of contract They left because of the breach (if they don't leave, they cannot claim to have been constructively dismissed) They have not 'waived' the breach, thereby affirming the contract
Elaborate on the following (being one of 6 grounds on which a dismissal is capable of being fair): Statutory restriction
This applies where there is a legal prohibition or restriction on either the employee which prevents the employment from being continued lawfully (e.g., if a doctor employed as such is struck off the relevant professional register)
What are the implied duties on the part of the employer into any contract of employment (under Common law)? (7)
To pay reasonable remuneration: - Subject to any express provision, e.g., to pay a rate fixed by the parties, or to pay nothing during lay-off To indemnify employees: - Indemnify the employee against expenses and losses incurred in the course of employment Health and Safety: - Normally expressed as a duty to protect the employee against reasonably foreseeable risks to their health, safety and welfare at work. Also imposed by statute. Common law duty is three-fold, and provides: - Safe plant and appliances - A safe system of work - Reasonably competent fellow-employees To provide work: - Employer will not be liable for failing to provide work as long as they continue to pay wages - Liability more likely to arise if paid on commission To provide accurate reference: - Employer does not have a duty to provide a reference, but if one is provided, they must exercise reasonable care and skill to ensure the information contained in it is accurate and gives a fair impression of the employee - If reference is given, employer cannot divulge information not known to the employee Not to disclose confidential information: - Not to disclose such information to third parties without the consent of the employee To maintain mutual trust and confidence: - Employer must treat employee with due respect and consideration - They must not, for example, conduct their business in a disreputable fashion, damaging the employee's reputation and future employment prospects (There is no duty to protect an employee's property) (Breach of a legal duty, if it is important enough, may entitle the injured party to treat the contract as discharged and to claim damages for breach of contract at common law. Breach of an employer's duty might give rise to a claim for wrongful and/or unfair dismissal)
What is the proper test for determining whether or not an employee is redundant?
To see whether there has been a reduction of the employer's requirements for employees to work at the place where the person concerned is employed. It is a question of fact (This can even include the company requiring less of a particular skill level, and needing more higher level employees)
What are the 4 key pieces of legislation which covers offences in relation to intellectual property, and list some offence examples (4)
Trade Marks Act 1994: - Unauthorised use of a trade mark - Gain is made, or loss created, through unauthorised use of a trademark. E.g., where a website used the Trademark of another business to gain sales Copyright, Designs and Patent Act 1988: - Criminal Liability for making, dealing with or using illicit recordings - Selling, hiring or exhibiting copyrighted material. E.g., public performance of copyrighted music, like a business streaming music to customers Registered Designs Act 1949: - Offence of unauthorised copying etc of design in course of business - E.g., creating a product using the same/similar design specifications of another product Fraud Act 2006: - Fraud by false representation - Making a gain or loss by making a fraudulent representation about a product. E.g., passing off a product as made by one company when it is a copy
How is the Data Protection Act 2018 enforced? What may non-compliance of the Act result in?
Under the Act, the Information Commissioner is the UK's regulator for data protection. They have statutory powers to enforce non-compliance with the Act The Information Commissioner must be informed within 72 hours of a data breach that affects the rights and freedoms of individuals. In high risk cases, the individuals must be notified as well Non-compliance of the Act may result in: - A criminal conviction where a criminal offence has been committed under the Act (e.g., for the re-identification of data with an individual after it had been anonymised) - A fine of up to 20m Euros, or 4% of the organisation's global turnover, imposed by Information Commissioner
It might be more advisable in certain circumstances to bring an action for wrongful dismissal over unfair dismissal, for example when: (4)
Where an award of damages would exceed the statutory maximum for compensation in an unfair dismissal case Where a claim for unfair dismissal has not been brought within 3 months of the effective date of termination (an action for wrongful dismissal can be brought within 6 years of the breach) A dismissal might be 'fair' but nonetheless wrongful, if insufficient notice is given An employee might not qualify to bring back a claim for unfair dismissal, for example if they lack the necessary period of continuous employment (Cases are commonly brought in the county court or High Court although employment tribunals have a concurrent jurisdiction)
The following means of termination do not constitute dismissal for the purpose of unfair dismissal: (3)
Where the employee resigns (unless it is a case of constructive dismissal) Where the contract is frustrated Where the parties come to a mutual agreement to terminate the employment
What is constructive dismissal?
Where the employer repudiates some essential term of the contract, for example by the imposition of a complete change in the employee's duties, and the employee resigns
Wrongful dismissal occurs where the employer dismisses the employee in breach of the contract of employment. Examples of this could include: (6)
Where the employer terminates the employment with no notice Where the employer terminates the employment with less notice than is required by the contract or the statutory minimum periods of notice Where the employer terminates a contract for a fixed term or specific task before the expiry of that fixed term or before completion of the specific task Where the employee is selected for redundancy in breach of a selection procedure incorporated in their contract Where the employer wrongfully repudiates the contract and the employee 'accepts' their breach by resigning (this is the common law counterpart of the statutory 'constructive dismissal') Where the contract provides for dismissal on specific grounds and the employee is dismissed on some other ground not included in the contract (If the contract provides for the employer to terminate the contract without notice but subject to payment of a sum of money in lieu of notice, any dismissal is not wrongful, but the employee may sue for the agreed sum under the contract in the event that the payment is not forthcoming. They will not be under any duty to mitigate their loss in such circumstances. Even where notice is given, it may still be possible for an employee to show some other breach and that they were wrongfully dismissed)
What are the practical reasons why the distinction between a contract of service (employed) and a contract for services (self-employed) is important? (8)
Wrongful dismissal: (E = employee, S = self-employed) E = Can claim wrongful dismissal S = Cannot claim wrongful dismissal Employment protection: E = There is legislation (sometimes valid only after employee completed certain amount of continuous service) that confers protection and benefits upon employees, including: - Minimum period of notice - Entitlement to statutory redundancy payment - Remedies for unfair dismissal - Health and safety protection S = No such protections for self-employed. Although, increasingly, employment protection is given to 'workers' rather than 'employees', meaning they more than likely apply here as well. Depends on wording of the legislation. Health and safety laws relate to both employees and independent contractors Insolvency: E = In liquidation, an employee has preferential rights as a creditor for a limited amount of unpaid salary etc S = Nothing Implied terms: E = There are rights and duties implied in an employment contract by common law and statute, e.g., a mutual duty of trust and confidence S = These implied rights and duties do not generally apply to a contract for services Tortious acts: E = Employer is generally vicariously liable for tortious acts of employees committed in course of employment S = Liability of person hiring an independent contractor is severely limited, unless strict liability Taxation: E = Deductions for income tax must be made by an employer under PAYE from salary paid to employee S = Self-employed are directly responsible to HMRC for any taxes due VAT: E = Nothing S = An independent contractor may have to register for, and charge, VAT Social security: E = Employers must pay secondary Class 1 contributions on behalf of employees. Employees make primary Class 1 contributions. Differences in statutory sick pay and levies for industrial training purposes S = Independent contractors pay Class 2 and 4 contributions