Transcript 12 Employment Contract & Employee protection

1 Development of employment law
2 Employment relationship
3 Employer’s liability
4 Termination
5 Unfair & wrongful dismissal
6 Discrimination
7 Employee welfare legislation
8 Collective bargaining
1 Development of employment law
(1) Master & servant relationship: before 19th century
(2) Terms implied by courts
(3) Legislation for minimum working condition standards
(4) Law of collective bargaining
2 Employment relationship
Agency v employment
Employment
Agency
Employer: direct, control and supervise
employee’s work
Principal:
Employee: obedience
Agent: discretion
Reward
Salary
Commission
Liability
Employer bears wider scope of liabilities
Principal < Employer
Authority
Independent contractor v employment
Employment
Independence
Employee: ╳
Liability
Employer’s vicarious liability
Reward
Employee: salary
Reward
Employee: √
Independent contractor
√
Self liability
Profit
╳
◇Statutory intervention in employment: written particulars
Employer must give written particulars of terms of his contract in 2
months of commencement of employment, indicating:
lName
lDate of commencement
lContinuos counting of previous employment, if any
lRate of pay and calculation method
lTerms & conditions covering working hour, holidays, sick pay and pension scheme
lNotice period for early termination
lJob title
lDisciplinary rules
lIts status in state pension scheme
◇ Implied terms of the courts
(1) Employer’s duty
* Pay the amount as agreed
* Treat employees with trust and respect
* Meet safety requirement
* Give employee time off for public duties
* Indemnify employees for expenses incurred in work
(2) Employee’s duty
* Be ready and willing to work
* Use reasonable care and skill
* Obey lawful orders
* Look after employer’s property
* Act in good faith
◇ Reasonableness of non-competition clause
Sector
Position
Restraint clause
Attorney
Partner
Not to work as an attorney
within a 5 mile radius for 2
years
√
Necessary to protect its
client base and goodwill.
Partner
Not to work as attorney for
2 years.
×
No region is mentioned.
Typist
Not to work as typist for
law firm within 5 mile
radius for 1 year
×
Typist possesses neither
goodwill nor trade secrets
Salesman
Not to solicit orders from
ex-customer for 2 years
×
Fails to limit to the
specific goods supplied
by ex-employer.
Salesman
Not to sell to ex-customer
competing with exemployer for 5 years.
×
Restraint longer period
than necessary to recover
the goodwill.
GM
Not to sell to ex-customers
for goods competing with
ex-employer for 5 years.
√
The GM would justify a
period of longer restraint
to protect its goodwill and
trade secrets.
Equipment
maker
Reasonable- Reason
ness
3 Employer’s liability
Contractual liability
Tort liability
Illustration:
A is employed Henry’s Diary to drive milk truck. While proceeding
on his appointed rounds, he negligently collides with another car.
He has committed a tort in the course of employment. The victim
may sue both A and Henry’s Diary.
Sweatshop v worker’s safety
15
他
才
岁
！
Sun Wenliu：badly beaten due
to resignation，spending 6
months for crawling home from
Henan to Shandong. Only
44,look like 60’s！
4 Termination
4.1 Notice of termination
(1) Reasonable notice: 3-6 months, or 1 year
(2) Payment in lieu of notice period
4.2 Dismissal without notice
(1) Grounds
* Misconduct
* Disobedience
* Incompetence: difficult to justify
*Illness: permanent disability or constant recurring illness
(2) Effect: discharge of contract
4.3 Redundancy
(1)Cause of redundancy
* Employer has ceased to carry on the business
* Employer has ceased to carry on business in place employee was employed
* The kind of work either has been diminished or is expected to diminish
(2)Suitable alternative employment
Must accept. Else, lose the right to redundancy pay
(3) Redundancy payment
Compulsory standards apply if no special terms in the contract
giving them more
5 Unfair & wrongful dismissal
5.1 Unfair dismissal
(1) It is unfair unless justified in 5 aspects:
* Capability or qualification to do the job
* Employee’s conduct inside or outside the employment
* Whether he is redundant
* Whether it is illegal to keep the employee on the job
* Some other substantial reasons
(2) Remedies
* Reinstatement: get his old job back & recover back-pay
* Re-engagement: give similar job
* Compensation: same as redundancy payment
5.2 Wrongful dismissal
(1) Notice period
(2) Remedies: violation of contract
(3) To sue for breach of contract
6 Discrimination
6.1 EPA(Equal Pay Act) 1970
(1) Matters covered by contract
(2) Not only pay, but also sick pay, mortgage scheme, rent
allowance
(3) Like work, work rated as equivalent: no less favorable than that
of man
(4) Remedies: damages, arrears of pay
6.2 SDA (Sex Discrimination Act) 1975 & 1986
(1) 3 types of discrimination
* Direct discrimination
* Indirect discrimination
* Victimization
(2) Methods of discrimination
* Make discriminatory arrangement
* Offer discriminatory terms of employment
* Refuse or deliberately omitt to offer employment due to one’s sex
(3) Exceptions
Work done wholly or mainly outside UK
Job performed in private households
(4) Permissible discrimination
*. The need to preserve decency
* The essential nature of the job calls for authentic male or female
characteristics
* The job is a live-in job where employer can’t reasonably provide facilities for
both sexes.
* The nature of the establishment where the work is done requires one sex or the
other is employed.
* Social work job providing personal services whose nature requires it is held by
a particular sex.
* The job involves going to countries where might object to the employee’s sex.
* The job is one of two held by a married couple
(5) Enforcement by industrial tribunal
* Affirm violation
* Award compensation
* Injunction: not to discriminate in the future
6.3 RRA (race Relation Act) 1976
(1) Outlaws 3 types racial discrimination like sex discrimination act
(2) Outlawed discrimination due to color, race, nationality, or ethnic
or national origin
(3) Exceptions
* Promote authenticity in a work of drama or entertainment
* Create an authenticity work of art
* Give authenticity to places where food & drink are served
* Employ social workers concerned with the welfare of racial groups.
(4) Enforcement by Commission for racial Equality
6.4 Disabled persons
* Minimum 3% should be registered disabled persons
6.5 Persons with criminal records
(1) Conviction becomes spent after a length of time.
(2) Dismissal due to spent conviction is unfair dismissal.
(3) 2.5 years jail will never become spent.
Case: PBOC Chengdu Branch’s height requirement challenged
PBOC Chengdu Branch published its hiring policy in a Chengdu
based newspaper on 23 December 2001. One of the requirements is
that male candidates must be 168 cm or above, and female
candidates must be 155 cm or above.
The plaintiff, Jiang Tao is a law school student of Sichuan University. He believes
he is well qualified in all other aspects, but the height requirement disqualifies him.
He was very surprised and angry at such a requirement.
Since PBOC is an administrative organ, he believes such height requirement
violated his right to equality. He lodged an administrative lawsuit against the
PBOC Chengdu Branch to Wuhou District Court of Chengdu on 7 January 2002,
which accepted the case.
Such a bold move attracted extensive attention of the legal community and press.
Under such pressure, PBOC Chengdu Branch voluntarily modified its hiring policy
in which the height requirement was removed on 10 January 2002, in absence of
any court judgment.
However the plaintiff’s suit was rejected by the trial court on 21 May 2002. The
plaintiff was admitted to graduate school of Sichuan University exempted from
entrance examination on 21 June 2002.
7 Employee welfare legislation
(1) Working conditions
Health & Safety at work etc Act 1974
(2) Unemployment insurance
(3) Worker’s compensation
* Non-fault based
8 Collective bargaining
(1) Trade union:
* May sue and be sued
* Quasi-corporate body
(2) Collective agreement