Liverpool Solicitors

LIVERPOOL EMPLOYMENT LAW FAQS

When is an employment contract deemed to exist?

The Employment Rights Act 1996 defines a ‘contract of employment’ as a service or contract or apprenticeship, which can be created expressly (in writing or verbally) or through implication. Employment contracts can exist on both implied and express terms.

Express terms

The most obvious way in which an employment contract can come into existence is by drafting employment terms in writing. An agreement is considered to be expressly made even if the terms have been verbally agreed. In order to be governed by the Employment Act 1996 the terms of the verbal agreement should be clear and agreed by both parties. Express agreements can also be classed as agreements made between trade unions and the employer. If there is a general workbook manual this can also be regarded as an employment agreement that has been expressly made. Naturally any term featured in the Employment statute is regarded as being expressly agreed and overrides any terms which are inconsistent.

The legislation specifies minimum standards of behaviour which employers are expected to follow such as giving employees the right to paid holidays and ensuring daily and weekly rest breaks are incorporated into the timetable. Employers must pay employers either the national minimum wage or any amount above this. The last main point employers should have reference to is that the employee must receive notice before being terminated.

Employers should be aware that any employee who has been working for one month or more has the statutory right to have terms of employment written out and within the second month of the employee working on the job.

Implied terms

In some cases, terms of employment or an employment contract is impliedly made because there exists a duty of trust and confidence between the employer and employee or the employer has a duty to pay wages or must abide by health and safety measure by providing a safe working environment.

Although terms can be agreed verbally it is advisable that as many terms as possible are put in writing and ideally brought to the attention of the employee before or when they are about to start being employed.

The legal position

A contract of employment is governed by contract law. This means that in order to exist the elements of contract law must exist. This includes an offer of employment which is accepted by the employee, and the exchange of consideration between the parties. In the case of employment contracts consideration involves one side providing a service and the other paying for this service. The last and final element which is almost bound to be interpreted by the courts in an employment relationship if all the other elements exist is an intention to create a legally binding arrangement.

Types of contract

An employment contract is only deemed to exist where there is a distinguishable employer and employee relationship. This normally applies to those in full time permanent work. This type of arrangement can be distinguished between subcontractor or freelance work.

Where the distinction between a working arrangement is blurred there are a few tests which can be applied to determine whether an employment relationship exists or whether the relationship is considered subcontracting or freelance work. These include considering whether a mutuality of obligation exists, considering whether the employer is expected to provide work and whether the employee has the option whether to turn it down. Another test relates to the extent of control exerted over the worker and whether the employer controls how the worker works. A final test considers whether the employee is considered replaceable or whether the employer can send another worker to complete a job on their behalf.

This distinction should be made by the employer on the outset of employment, to avoid unsuspecting claims against breaches of employment regulations.

Having said this, there are certain workers who fall under the subcontracting or freelance title who do have some protection in law regardless. The relevant Legislation could be the Working Time Regulations 1998 or the National Minimum Act 1998 giving rights to all workers who do not have a working relationship with any entity.

What are the qualifying conditions for claiming Unfair Dismissal ?

In order to make a claim for unfair dismissal, certain technical criteria must be satisfied, which are :-

• You must be an employee and work either full-time or part-time
• You must have at least 1 year’s continuous employment.
• You must be under 65 years old or if your employer allows staff to work beyond 65 the normal retirement age for your job at the date of dismissal.
• You must not be in an excluded category, e.g. the armed forces or police

What is the time limit for bringing an Unfair Dismissal Claim in the Employment tribunal?

There is a strict rule that an Unfair Dismissal claim must be commenced within 3 months of dismissal, whether the dismissal is by the employer or where the employee resigns and claims constructive dismissal. If a claim is not commenced within this time the employee will lose the right to claim.

If the employee has a grievance with the employer it is a requirement to raise a grievance first with the employer before making a claim to a tribunal.

Qualification for redundancy payments ?

If you have over two years’ continuous employment, the company is closing down a place of work, or ceasing or diminishing the particular work undertaken by you, then you will have a right to a redundancy payment if made redundant.

I am being badly or unfairly treated at work, what should I do ?

First and foremost, regardless of whether you believe your employer will act fairly or treat your complaint seriously, it is vital that you comply with the employer’s policies and procedures about raising a grievance and give the employer the opportunity to deal with the issue appropriately internally, and to follow the procedure through, by stages or appeals if necessary. If you then feel so ill-treated that you feel you can no longer work there, you may resign and claim constructive dismissal, although such claims are difficult as you would need to prove that the employer has fundamentally breached your contract, and there are not many aspects of an employment contract which are considered to be “fundamental” . Should you feel ill-treated on the grounds of race, religion, sex, sexual orientation, pregnancy or disability, you may also sue your employer for discrimination.