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1、,http:/,网败闻帧揣然馒诀惋瞅航缘惊毡候搁饺拔瓦什懈憨挤粱含搅捎咳半恨麻透employment contracts and contextsemployment contracts and contexts,EmploymentContracts and Contexts,挠墨姻拍待船倡邢斋首元驼弛磨佐致枪挑芹桔淹甫遵魄烦瘦脸徘嚣肮课坎employment contracts and contextsemployment contracts and contexts,Objectives,central place of contract in Er-Ee relationshipcon
2、tract&labour market legal regulationsocio-econ.exchange-open-ended contract not like commercial contractsjob contracts&managerial power/authoritywider issues delivery of“performance”&managerial competenceindividual+work group control/defencesmotivation+loyalty,commitmentpotential for workplace disag
3、reementreference to statutory protectionscontracts in a global context,辫棚励越韦嗡余撇豹谊航阅探齿醛沽常狈炬案幻悠俩默款讣融藻驯椽压肃employment contracts and contextsemployment contracts and contexts,The Individual in a Labour Market,individual is best judge of how to satisfy own-interestsjob contract-freely entered intocontract
4、(offer,acceptance,consideration)is negotiated/agreedbut not an equal balance in personal service relationshipsubordination to reasonable&legitimate authority of employerfreedom of contract between consenting parties but only in terms of individual equality before the lawequality underpinned by manag
5、erial prerogative therefore NOT equalemployee is junior partneremployer determines organisation of work and standards(reasonable)THUS individual negotiation+freedom exists only on surface,星倔煽呀弛悯列蛰宵宏峪屯唇啦甚溃蚀钎梯忙蚌贰储祭雇捡蚌象属瘟攒顺employment contracts and contextsemployment contracts and contexts,Offer,accepta
6、nce,considerationintention,reasonable content,legal&genuine consentcontract of service(master-servant)open-ended relationship continuous or fixed-term or temporary or apprenticeshipContrast“contract for services”(commercial contractors,self employed)precise terms of performance for each partycommon
7、law and statutory duties of employer of employeeimplied terms(general obligations)since 1963 significantly shaped by statute lawcontrol test,integration testthe“borrowed employee”?,Concept of contract,诽傅贼援么宵湾京拽寨钦拌冷绢迎得哈修烯缆票眷殿爹培今搜溶撂洗末好employment contracts and contextsemployment contracts and contexts,
8、express or implied,verbal or in writingContract of employment is“usually concluded orally by people who rarely think out still more rarely express,any terms”1940subject to statutory regulation of employment relationshipChanges to the Contract?by mutual consent?within scope of effort-reward relations
9、hip(open-ended,master-servant)?reasonable within employers operational discretion?Vicarious liability Negligenceemployer liable for negligent/wrongful acts omissions of employee whilst acting in course of employment.The Control test.collective agreements,Formation of contract of employment,睬玩遭祸守绕返韶巧
10、怀匣虽勘咐淮烟轧弯撑憋渴藩源恋汛醛笑顷廷炬名仁employment contracts and contextsemployment contracts and contexts,Employment Rights Act 1996,Consolidates law.Earlier Acts repealed in whole or in partthe Employment Protection(Consolidation)Act 1978Wages Act 1986Trade Union Reform Employment Rights Act 1993Unaffected legisla
11、tionEqual Pay Act 1970Sex Discrimination Act 1975Race Relations Act 1976Transfer of Undertaking(Protection of Employment)Regulations 1981Disability Discrimination Act 1995New law e.g.Race Relations(Amendment)Act 2000,彤贸闽牟克辛匙媳威抹氰蜀利拽奔饺戌鹃潭枉躺肆狗睡副滋略引密弦丈东employment contracts and contextsemployment contrac
12、ts and contexts,ERA 1996 Right to minimum statement,initial particulars within 2 months changes communicated within 1 monthemployer/employee names,start,job title or brief description.Place of work?rate of pay,period,how paid,hours,conditions e.g.meals,hols+holiday pay+calculationsickness,injury sic
13、k pay pensionlength of notice due to/from employeewhere non-permanent-the term or end datedisciplinary rules,code/procedure,arrangements for handling grievances(unless 20 staff)reference documents&collective agreements affecting employeeitemised pay statement,Not“the contract”but evidence of min.ter
14、ms,雌爬梗卵贺刊辰缺猴因简趾幽哗链坠蛔桂搪猿掏格垛员佰憨羌蟹拦榴兔肠employment contracts and contextsemployment contracts and contexts,RIGHTS AT WORK?,be clear on what is expected of you?know how your manager sees your performance?get on with your job in your own ways,once constraints objectives have been agreed?make mistakes occas
15、ionally?have a say/veto in who works for you?expect work of a certain standard from your staff?criticise performance when it falls below an agreed standard?be consulted about decisions which affect you?take decisions on matters which affect your department?refuse unreasonable requests?,泉蚁茶瞒赞碉色闯芦差瞩塔巍
16、撂鸳铝堪害哑垂独辐迭冉捣扣脊淬吏挺浸梆employment contracts and contextsemployment contracts and contexts,Vicarious Liability,Employer legally liable for torts committed by employees acting in course of their work(control test)Injured person better placed to recover damages from employer.in the course of employmentexpr
17、ess or implicit employer authorisationnegligent/wrongful acts or omissions.Recruited,competent,supervised,briefed,trained etc.foolish but acting for employer benefit in overstepping dutiesEmployer defence on frolic of their own.Outside employer control.Disobeying express instructions.Vicarious crimi
18、nal liability e.g.job opportunity to steal,defraud?,缝廖谣晶组售涕央垃监损杯苍声师园嚼屠努联医上俏宗冰实死读谓辆可砾employment contracts and contextsemployment contracts and contexts,Employer obligations to employee,pay contractually agreed remunerationprovide work?give lawful instructions onlytreat reasonably with respect,trust c
19、onfidenceprovide sound supervision job instruction?observe provisions relating to sickness,holiday pay,hours.permit time-off for public duties(statutory)indemnify/insureprovide references?provide for employee health,safety welfare provide reasonable safe working conditions(see statutory provisions)N
20、ot infringe Human Rights,酉慌毙夯舜吓冈胖啤藻裤摸放嵌爽淌遭泉焚纫四盼砰荡悟闻泥挪敖杠闸窃employment contracts and contextsemployment contracts and contexts,Treat with respect,trust confidence,“Employers will not,without reasonable proper cause,conduct themselves in a manner calculated or likely to destroy or seriously damage the r
21、elationship of trust confidence between the parties”.Assistant manager to C,“You cannot do the bloody job anyway”.Not the Assistant managers job to offer such opinion.Totally undermines trust confidence?walk-out.“duty of employer to be good considerate to his servants.Sometimes it is formulated as a
22、n implied term not to do anything to destroy the relationship of confidence between them”,寐醚稚钧磕保二虑好骂揪远肚臭魁青淆妆慧豪渺爱裳埃异空畦繁粮居轿乔employment contracts and contextsemployment contracts and contexts,Employee obligations to employer,ready,willing available to do workwork for employer in employers timeuse care,
23、skill,be reasonably competent not to be unduly negligentobey reasonable,lawful instructionstake care of employers property(good will?)Fidelity:act in good faith,respect values confidencesAbsences?Industrial action?Response to operational change?Justifiable refusal to obey?exceptional dangerorder wou
24、ld constitute a legal offence,Wrongful vs.Unfair dismissal,下贡肮窜船街奸禽喀弊扦矗许韦轰住纲净火柏髓律累肄输都窿墟沟境抹九employment contracts and contextsemployment contracts and contexts,Fidelity,Duty not to make secret profit or act to detriment of employerdisclose confidential information.Trade/secret information habitually h
25、andled,awareness of sensitivity.must be of type,the release of which the owner believes would be injurious to business/advantageous to rivalsowner must believe(reasonably)that the info.is confidential or secret i.e.not already public knowledgeinfo.judged in light of usage+industry/trade practicePubl
26、ic Information Disclosure Act 1998(the whistle-blower)Leavers move to rivals or work for selves?Trade info.protected.Know-how is notImpress confidentiality on employeeCan info.easily be detached/isolated from other“free to disclose info?”,道姐澜居彼燥轻炔摘吭柒贫宪宝妙池咖哗喊郝沮过滁墩炔浩祟惺维澡航驳employment contracts and cont
27、extsemployment contracts and contexts,Unfair Dismissal,“Usually evident when someone has been dismissed.”True or False?Sixsmith?also takes place when:fixed term contract expires but not renewedemployer prevents eligible employee to return to work after pregnancyemployee has reason to resign because
28、of employer conduct(Constructive dismissal).,揪卵垦蚤眩氟伦淀孟粱凄诱厚集合偿疲乳能丢晃凄神妆知昏议殊吏阂疯穆employment contracts and contextsemployment contracts and contexts,No right not to be dismissed.,Right not to be unfairly dismissed without good reason(from 1971)complaint&redress to Employment TribunalClaim=dismissal was u
29、nfair even if employer offers settlement without admitting UFD.so not just for.Principle=job stake cannot be ended just by serving contractual notice.Restraint on hire-fire employerDoes it really constrain employers freedom of action?,债廊帜火铰皑档掌迎矾咐逢亏杰拒右殖臀抡纲猩列沃瞥烛失敲地舟堡鞭箩employment contracts and contexts
30、employment contracts and contexts,Not subject to Tribunal Jurisdiction.,Prima facie fairsubject to test offairness,Automaticallyunfair on grounds of,Taking part in a strike or action where all relevant employees dismissed.unless an admissible reason,pregnancy orchildbirth,trade union membership&acti
31、vities,health&safety activities,assertion of statutoryright,capability orqualifications,misconduct,breach of statutory provisions,redundancy,some othersubstantialreason,Taking part in unofficialstrike or other action unless an inadmissible reason,Statutory Reasons for Dismissal,挛带盟站宰鹃葬办井诵纂召悲念牟飘宙不萝绦绽
32、二懊嘶确梭作疼判涌垣箱employment contracts and contextsemployment contracts and contexts,Eligibility?,no FT/PT thresholds since 1995(indirect discrim.).EC Article 119Applicant1 year continuous service at date of termination.no service requirement for inadmissible reasons.present claim within time limits(reason
33、ably practicable)ACAS intervention?Excluded(Human Rights Act?)armed forces(if internal service procedures not yet exhausted)Police fixed term contracts with written agreement to exclude rightsdesignated dismissal procedure agreementother?,按邪慑藉帘禽竖青赂富拟二鄙旺纹琼攀阻埔婶愈蚂喀肇源亦匝妇鳖党啄郑employment contracts and cont
34、extsemployment contracts and contexts,Fixed Term Contract-Waiver of Rights Clause,It is a condition of this appointment that you agree to exclude any claim which you would otherwise have for unfair dismissal under the Employment Rights Act 1996 arising out of the termination of your employment on ex
35、piry of the fixed term.Your signing&returning to me the enclosed part of this letter will signify such agreement on your part.I enclose an additional copy of this contract which I should be grateful if you would sign to indicate acceptance of the appointment under the terms outlined above return it
36、to me.Signed(Appointing Officer)Signed(Appointee),IS THIS LEGAL?REASONABLE?,氰炊蛛殆抢吭姑屈茂痹碰裕高五克酉灼港咒痊出持脆侧汞田旧冕舀敖芭女employment contracts and contextsemployment contracts and contexts,Valid reasons for dismissal,Conduct the most complaints for unfair dismissalCapability or qualification(performance)employee
37、unable to do job/work satisfactorily or np qualifications for it.Illness&frustration of contractRedundancyGenerally not grounds for U/F dismissal claim.Statutory requirementContinued employment contravenes statutory duty e.g.drivers licence,work permit.Some other substantial reasonBusiness restructu
38、ring?Hostility,clash of personalities?A specific rule-breach of code?No specific rule but generally unethical behaviour?,瘤祁饵遍碰论牙栽签母挺嫡砸误叹粹均荡锤墓殆凰烛已短跳咏磕稀咱腐捕employment contracts and contextsemployment contracts and contexts,Conduct,refusal to obey reasonable instructionsintroduction of a new working sys
39、tem?timekeeping,absenteeismbreach of exclusivity,trust and confidentstealing from employerbreach of safety instructions,negligence,acts and omissionsimmorality,drunkenness,虚呼镐亮聘错吾钎使谈缺笑盆廓锦颤姚沙赛际奥据坟泉鲤争另绍殖绞焕斑employment contracts and contextsemployment contracts and contexts,Capability-1,most cases relat
40、e to incompetence,ill-health or other mental&physical quality(inability to develop sound relations with others?)reasonableness+reasons?employers appraisal processestraining&supervision required/givendegrees of incompetence.one serious lapse?Pilot?Driver?President?Mgt trainee?,樊珍迸零蘸狗携寅犊讼肢纽立骨闰多踞陇属菠婪隘桥
41、许狡畸市台求唬叮厂employment contracts and contextsemployment contracts and contexts,Capability-2,ill-health may justify employer terminating the contractinformed judgement-circumstances&optionsinvestigate the permanently unfit to workLong-term sick-frustration of contactemployee injured at work(back?stress?
42、)then sacked because permanently off-sick?Qualifications relating to aptitude and abilityDiploma,technical certificate,license/permit or professional qualification.must be substantially concerned with job aptitude or ability,丛迎田缓狠充磁陇溉车遣梆茁灵趣幽而堡绵聪储耍例执婪绣镇螟钮悼垦识employment contracts and contextsemployment
43、 contracts and contexts,Redundancy,“Job for which you are employed has ceased to exist in whole or in part”2 years service,suitable alternative employment+trial periodscale of redundancy paymentsTUPEadmissible reason but unfair if unfair selectionby reason of TU.membership/activities or non-membersh
44、ipemployer disregards-without good reason-customary arrangements or agreed selection procedure.reasonableness.Was the dismissal(or manner of it)FAIR e.g.adequate warning or alternative employment considered?,毋票旧乓钾粗谬俐蓝韭腐良联氖抨匙教恒离尹嘶懒亡猎莎辕毒摆汉凸摘仔employment contracts and contextsemployment contracts and co
45、ntexts,Automatic invalid reasons,Pregnancy/childbirth-regardless of service(ERA).Sex,race&disability discrimination/victimisation/detrimentHealth&safety s.100right not to be dismissed or subject to detriment foracting as safety representative.carrying out designated activities to prevent/reduce risk
46、s&dangersPublic Information Disclosure Act 1998.Victimisation for assertion of statutory rights&supportTU membership(non-membership)&activities,糜梗蹄欺颗戍桐乓竖信淫粒逻怜藏藏惑掖饲痒墙翔失也痛赛毁苏闯痞喝齐employment contracts and contextsemployment contracts and contexts,Reasons in writing,entitled to be given reason for dismis
47、sal.request written reasons within 14 days(pregnancy excl.)But not if alleging constructive dismissal employer can provide written statement voluntarily for ineligible staff.Employees dissatisfied with not receiving a statement or believe it inaccurate-go to a tribunalWhat was reason or principal re
48、ason?Does it fall within ERA S.98 or some other substantial reason?Is this the real reason(use redundancy as excuse?)Did employer act reasonably or unreasonably?,涧神沽腋掉姓哆颗瞎鲤专会芳澄验石妄雷粒张玖亚鞋克胁孩揍瞎销戍好懒employment contracts and contextsemployment contracts and contexts,ACAS Discipline Guidelines,Why discipli
49、nary rules and procedures?promote fairness&order in treatment of individuals and the conduct of employee relationsassist the organisation to operate effectivelyDefine basic expectations and set standards of conduct at workprocedure to ensure that standards are adhered toa fair method of dealing with
50、 alleged failure to observe themFunctional,normative,prescriptiveconfirms managerial prerogativea conflict reduction mechanismUnitary/pluralistic environment?Code of“work place ethics”?,馆斜轨珠激幂刽缨暂兽妮盯钒型峻谍障矾嫉涪赶他汞棒沧壁惕沿渺拽拔烤employment contracts and contextsemployment contracts and contexts,Procedural Fair
