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TOPIC: An evaluation of the rights of employers in relation to social media postings by their employees.
It is a powerpoint (5 minutes presentation)
The topic must include a reference to at least one case or a statute that we have come across in our discussions. Please note that this does not mean that you present on a case or a statute but rather that you incorporate a reference to case law or statutory provisions in your discussion.
The aim of this assessment is to further develop your understanding of the legal issues and topics we have covered within the module and build upon skills such as the use of online resources, conducting of legal research and the use of relevant examples.
– Think of legal and business aspect of the topic
§ You will need to introduce yourself to start with and have an effective conclusion.
§ You can use slides, props, sound effects etc to help you convey your thoughts and arguments.
§ Do not exceed the maximum time limit.
§ You may want to consider the following questions to help you get started (do not feel obliged to or restricted in any way):
· What topics have I found most interesting?
· Why have these topics or cases/statutes been interesting to me personally?
· Why is this an important issue both in the context of law and business?
· What case(s)/ statutes are most relevant to this issue (try to focus on landmark and leading cases)
· What are some of the future legal questions that this issue/topic raises?
· What is my opinion on this topic? (explain your answer)
· What would I change about the future of this legal issue and why?
MUST for the research
Law Journals: oxford journal legal studies, legal studies, CAMBRIDGE LAW journal, law quarterly review, Harvard law review,
-Avoid anything published by students
-Corporate law: international company law review, journal of business law
-Books: oxford scholarship online website, Cambridge core
-Going for academic level of work
-Cases: The British and Irish Legal Information institute
-Footnotes and Bibliography
-ONLY USE UNITED KINGDOM ACT/LAW
-Journals research: Westlaw edge UK
CONTEMPORARY ISSUES
IN LAW AND BUSINESS
LABOUR LAW
Lecture 8
Dr S Perera
School of Law
QMUL
OBJECTIVES
! Gain an overview of the relationship between an employer and employee.
! Understand the role of law in protecting the rights of employees, specifically through
! (a) a contract of employment
! (b) for injuries at work both at common law and by way of statute
! Understand the interaction between company law, corporate governance and labour law
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TOPIC OVERVIEW
!What are Rights at Work?
!What is the role of law in protecting rights at work?
!Does Company Law and the Corporate Governance framework permit the
exploitation of workers? How? Is this an inherent defect?
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WHAT IS THE EMPLOYER,
EMPLOYEE RELATIONSHIP?
” Employees/workers are employed by a business under a contact of service
“Independent contractors are employed under a contract for services
“The employer and employee relationship is based on a contract of employment
“While it is a valid contract without writing-the ERA 1996 requires employer to provide each
employee with a written statement of the key terms
“Workers may be employed on a part-time/casual or agency basis-contract of service would
not entitle them to sick pay and certain other benefits (defined by s 230(3) ERA 1996
“Employees the contract of service would entitle them to full range of employment rights
including sick and holiday pay and rights on unfair dismissal.
“Independent contractors can be a company or an individual providing a service to employer
on site or off-site-does not enjoy same rights as employee. (modern practice has meant that
contracting out for services is common).
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UBER DRIVERS: SELF EMPLOYED OR
EMPLOYEES OF UBER?
The case was first brought before Employment Tribunal by App Drivers and Couriers Union (ADCU) in 2016
with the argument made by two drivers that they ‘worked’ for Uber (entitled to minimum wage and holiday
pay).
This was appealed to Employment Appeal Tribunal which also upheld earlier ruling. Appeal then progressed
to CA and then Supreme Court.
Judgment handed down in February 2021
https://www.supremecourt.uk/cases/uksc-2019-0029.html
Delivering his judgement, Lord Leggatt said that the Supreme Court unanimously dismissed Uber’s appeal that it
was an intermediary party and stated that drivers should be considered to be working not only when driving a
passenger, but whenever logged in to the app.
The court considered several elements in its judgement:
# Uber set the fare which meant that they dictated how much drivers could earn
# Uber set the contract terms and drivers had no say in them
# Request for rides is constrained by Uber who can penalise drivers if they reject too many rides
# Uber monitors a driver’s service through the star rating and has the capacity to terminate the relationship if after repeated warnings this does not improve
Looking at these and other factors, the court determined that drivers were in a position of subordination to
Uber where the only way they could increase their earnings would be to work longer hours.
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DETERMINING STATUS
“FACTORS WHICH MAY HELP:
! The contract- not just the label given but actually looking at intention of parties
! Risk and Financial Outlay: who owns the equipment, who pays?
! Is there an element of delegation or is it personal performance? An employee must perform in person while an
independent contractor can delegate. This has proved to be difficult in the current business climate/ gig economy.
See the case of IWGB v Deliveroo (2017) Central Arbitration Committee decided that Deliveroo riders are not
“workers” under section 296 of TULRCA. It found that the “almost unfettered right of substitution” in this case was
genuine, and this was fatal to the argument that the contract was one of personal service.
! SEE CA decision in June 2021https://www.bailii.org/ew/cases/EWCA/Civ/2021/952.html
! (similar cases have been found in gig economy Citysprint, Excel etc, but the Deliveroo case bucks trend.
# Control: extent to which the employer controls working hours and directs party (this was a determining factor in the
case of Uber)
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THE FORM OF THE
CONTRACT OF SERVICE
” the form is not important but s.1 of ERA obliges employers to provide employee
with a written statement of the key terms (from first day at work after 2020);
” A section 1 statement is not necessarily a contract of employment in itself.
“It may simply be a statement of what has already been agreed orally or in writing.
“If there is no separate written contract, the section 1 statement will be persuasive evidence as to the
terms of the contract of employment between the parties.
“If, however, there is a separate written contract, the section 1 statement cannot override a term
recorded in that contract. The contract itself always takes precedence (Robertson v British Gas
Corporation [1983] ICR 351).
“The section 1 statement must include particulars such as names, dates, disciplinary
proceedings and procedures, pay entitlement, holiday entitlement, notice length
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SOURCES OF THE TERMS OF
EMPLOYMENT CONTRACT
Express terms (contract or written statement or
verbal promises)
• Express terms are those that have been agreed
explicitly between the parties, either orally or in
writing. Even if there is one document described
as the employment contract, it will often not
contain all the terms governing
the employment relationship because
contractual terms may be derived from a
variety of sources
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Implied terms
Implied by Statute
Implied at Common law
• Implied terms are terms that have not been
specifically set out or stated by the parties at
the time of entering into the contract. The
parties may not even have addressed their
minds to the issues covered by the implied terms
at that time.
• Custom and practice
• certain and not contrary to law
• it must satisfy the established common law test
of being reasonable, notorious and certain.
• In the employment context, the custom or
practice must also be followed with such
regularity (albeit not necessarily universality)
that it becomes legitimate to infer that the
parties follow that practice because they
regard it as a legal obligation rather than a
matter of policy
• Works and Staff rules:
• Collective agreements: this is as a result of
trade Union activity
• There are many examples:
• The statutory provisions restrict the freedom of
employers to impose terms of their choice on
employees.
• Working Time Regulations 1998 imposes limits
on the number of hours an employee can be
asked to work.
• https://www.gov.uk/maximum-weekly-workinghours
• At common law, terms may be implied into
a contract because they are too obvious to
mention or because the parties assumed that
they would be incorporated at the time
the contract was entered into.
• For example, the fact that an employee has a
duty to serve their employer faithfully and the
employer has a parallel duty not to destroy the
relationship of trust and confidence between
employer and employee.
• These are mainly:
• to do their job with reasonable care and skill
(not be negligent);
• to obey all reasonable orders (transfers but
not if it endangers personal safety);
• to act in good faith towards the employer
(honesty)
• There are also common law duties implied
upon employer:
• Pay the employee as agreed
• Not undermine the trust and confidence of the
employee;
• Provide employee with safe working conditions
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COMMON LAW DUTIES OF
EMPLOYEE
Duty to work with reasonable
care and skill
(depends on skill and experience
of employee)
Duty to obey reasonable orders:
Ottoman Bank v Chakarian (1930)
it was not reasonable to expect
an Armenian refugee who had
escaped from Turkey where he
was under sentence of death to
accept a posting in Turkey
Duty to act in Good faith
• Not to act in conflict with employer’s
interests
• Not to reveal confidential information
• To account for all profits
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COMMON LAW DUTIES OF
EMPLOYER
Duty to pay employee
minimum wage or a living wage (some people are not entitled such
as volunteers, students doing work as part of an undergrad course)
• The SBEE 2015 provides for fines payable per employee
• Usually no right to make deductions unless statutory deduction
• Obligation to pay employee whether or not employer has provided work (but there is
a possibility for zero hours contracts). A number of high profile businesses use them.
The SBEE 2015 bans exclusivity clauses in zero hours contracts.
Duty not to undermine the trust and
confidence of the employee
aimed at preventing unreasonable and
abusive conduct (e.g. such as criticising a
supervisor in front of employees)
Duty to provide Safe working Conditions
• liability for breach imposed by law of tort (common law
and statute).
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CIVIL LIABILITY FOR
INDUSTRIAL INJURIES
Employers’ common law
liability (This is a duty of
care) but the courts have
recognized the need not to
place too great a burden on
employers (stress related)
To provide competent staff
Not a danger to fellow staff
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If alerted to danger- employer
liability arises
Employers’ Civil Liability for
Breach of Statutory duty
To provide safe premises, plant
and equipment
To provide a safe system of
work
Maintaining vehicles, cleaning
up after 3rd parties (cannot
delegate blame
Protective clothing, instructions.
training
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CRIMINAL LAW REGULATION OF
SAFETY IN THE WORKPLACE
” Health and Safety at Work Act 1974- empowers DWP to make regulations covering specific
areas of workplace safety.
“The statutory duties
“Employers’ duty to ensure the health and safety and welfare of all employees (take reasonably practicable
precautions)-s.2
“Employees must take reasonable care of their own health and others likely to be affected by their acts and
omissions and to cooperate with employer as far as necessary to carry out its legal responsibilities-s.7
“The employer has duty to persons other than employees-s.3 such as visitors, independent contractors;
“There must also be a written health and safety provision in their workplace.
“HSE has power to enter and investigate and persecute for any offence specified in the Actsee https://www.hse.gov.uk/ also see https://press.hse.gov.uk/2021/03/18/theme-parkfined-following-fatal-water-ride-incident/?
utm_source=hse.gov.uk&utm_medium=refferal&utm_campaign=press-channelspush&utm_term=news-page&utm_content=theme-parkfatal&_ga=2.159106173.67439980.1616680510-1731345045.1613470302
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COMPANY LAW, CORPORATE
GOVERNANCE AND EMPLOYEES
” Is the employee a key participant in the industrial activities of a business?
“What is the balance of power within a Company? What is the Shareholder primacy model?
“The Stakeholder model has no prominence within the Anglo-American systems
“Does employee look to employment law and the common law for protection? Why?
“The stakeholder approach. Section 172 of the Companies Act 2006.
“Why ? Is it the view of Companies/ Corporate Theories
“Corporate Governance Code:
https://www.frc.org.uk/getattachment/88bd8c45-50ea-4841-95b0-d2f4f48069a2/2018UK-Corporate-Governance-Code-FINAL.PDF
“See principles D and E
“The Good Work Plan:
https://www.gov.uk/government/news/new-protections-for-millions-of-vulnerable-workers
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DISCUSSION TODAY
“Does the governance of companies and the law encourage risks to be passed to
employees?” Discuss
! background/rationale/ agree or disagree take a position.
!both sides of the argument
!illustrative examples
!We will engage in this discussion in breakout rooms-3 groups- I will assign.
!Elect a scribe and presenter before you start discussions.
!Presentation of maximum 5 minutes per group.
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