就业合同和上下文英文

1、 Chris1The Scope of the Employment ContractEmploymentContracts and Contexts Chris2The Scope of the Employment ContractObjectivescentral place of contract in Er-Ee relationshipcontract & labour market legal regulationsocio-econ. exchange - open-ended contract not like commercial contractsjob cont

2、racts & managerial power/authoritywider issues delivery of “performance” & managerial competenceindividual + work group control/defencesmotivation + loyalty, commitmentpotential for workplace disagreementreference to statutory protectionscontracts in a global context Chris3The Scope of the E

3、mployment ContractThe Individual in a Labour Marketindividual is best judge of how to satisfy own-interestsjob contract - freely entered intocontract (offer, acceptance, consideration) is negotiated/agreedbut not an equal balance in personal service relationshipsubordination to reasonable & legi

4、timate authority of employerfreedom of contract between consenting parties but only in terms of individual equality before the lawequality underpinned by managerial prerogative therefore NOT equalemployee is junior partneremployer determines organisation of work and standards (reasonable) THUS indiv

5、idual negotiation + freedom exists only on surface Chris4The Scope of the Employment ContractOffer, acceptance, considerationintention, reasonable content, legal & genuine consentcontract of service (master-servant) open-ended relationship continuous or fixed-term or temporary or apprenticeshipC

6、ontrast “contract for services” (commercial contractors, self employed) precise terms of performance for each partycommon law and statutory duties of employer of employeeimplied terms (general obligations)since 1963 significantly shaped by statute lawcontrol test, integration testthe “borrowed emplo

7、yee”?Concept of contract Chris5The Scope of the Employment Contractexpress 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

8、 the Contract?by mutual consent? within scope of effort-reward relationship (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 Cont

9、rol test. collective agreementsFormation of contract of employment Chris6The Scope of the Employment ContractEmployment Rights Act 1996Consolidates law. Earlier Acts repealed in whole or in partthe Employment Protection (Consolidation) Act 1978Wages Act 1986Trade Union Reform Employment Rights Act 1

10、993Unaffected legislationEqual 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 Chris7The Scope of the Employment ContractERA 1996 Right

11、to minimum statementinitial 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 sick pay pensionlengt

12、h of notice due to/from employeewhere non-permanent - the term or end datedisciplinary rules, code/procedure, arrangements for handling grievances (unless uniformity of treatmentNotice of proceedings and preparedness Chris28The Scope of the Employment ContractExemption from unfair dismissal provisio

13、ns?Natural Justice“What am I being accused of”Right to be heard, put my side of the case, query evidence and have own evidence considered even for gross misconduct.Confront my accuser? Witness statements?Right to representation. Where practicable, TU. rep or fellow employeeInstant vs. summary dismis

14、sal (field court)take account of employees information before decidingavoid hasty conclusions e.g. assumptions about prior disciplinary warnings, say, poor time-keepingAppeals? Chris29The Scope of the Employment ContractExemption from unfair dismissal provisions?No difference principleOverlook proce

15、dural defects if employer shows that - on balance - the same decision would have been taken? NO! More likely to be U/FD. Stick to procedure.Caught “inflagrante delicato”? Stick to procedure e.g. + ve drugs test (airline or oil-rig)?“It is alleged that” employee did something outside work?Establish t

16、he truth. Do not dismiss on hear-say.Has Employer genuine belief in the misconduct?reasonable evidence and investigation? Chris30The Scope of the Employment ContractCompany Policy Framework - 1published and common knowledge? Verbal?Dos and donts? Express & implied?MINOR (corrective feedback)gene

17、ral irritationsweak-fit between duties/standards & performancecompanys value system?implied from general, routine, common-sense behaviour?outside workplace?MAJOR (forever undermines root of relationship)accumulated minor breaches - no improvement?trust relationship cannot be re-built (one-sided

18、Tango?)criminal actions?outside workplace? Chris31The Scope of the Employment ContractVerbal warning- notedWritten warning- maybe FinalDismissal- or otherCompany Policy Framework - 2Informal/formal splitGrievous breach - less requirement for all steps?Recorded warnings with guidance on corrective ac

19、tion & warning shelf-life Appeal? Via internal grievance procedure?punishment fits crime?representationmanagers involved at each stagecorrespondence & documentationInformal advice“a word in your ear”Formal stagesExternal?Internal grievance procedure Appeal? Chris32The Scope of the Employment

20、 ContractFormalVerbal warningWritten warningDismissalSummary Dismissalwith/without noticesuspension - with or without pay?transfer, demotion, fine?Final written warningpull back from dismissalnext step dismissal? Appeal?Written warningformal, recorded during hearing. clear communication of consequen

21、cesVerbal warning - Issued formallyaway from workplace - confidentialAide memoir - time, reason, what was communicated, next step, response.Feedback, staff appraisal? Normal supervision. Separationof roles (controller/friend?)Company Policy Framework - 3 Chris33The Scope of the Employment ContractRe

22、asonableness and sufficient reasonEmployer must act reasonably in all the circumstances in treating the reason as a sufficient and valid reasoncircumstances incl. employer size & resourcesReasonableness depends onHOW the dismissal was carried out andif employer acted reasonably leading up to the

23、 decision to dismiss e.g. for misconduct or capability - was there a warning, chance to improve? If redundancy, was employee considered for alternative work?Qualifiers for small firms Chris34The Scope of the Employment ContractFairness testsufficient reason based on equity + substantial meritsmultip

24、le reasons - go for the principal ones!burden of proof neutral but balance weighs on employerET is NOT an arbitrator - cannot substitute own views of “reasonable” for the employersWhat would a reasonable employer have done in the circumstancesthe right course of action to adopt?band of employersWas

25、it fair?teacher slaps childs legs?refusal to work 3 months of Sundays? Chris35The Scope of the Employment ContractShort case studies 1weekly staff rota pinned on the factory notice board by the supervisor. The rota lists the shift days for each operative. It is pinned up on the Tuesday of preceding

26、week without pany policy statement on equal opportunities lists expectations regarding how staff should behave and speak towards each other.A friend who you regularly have lunch with is very upset. Her manager spoke abruptly to her about “reading a magazine and writing personal letters using the com

27、panys word processor when she should have been working. She was waiting for her supervisor to pass on new items of work. Other people in the office - also use the companys word processing facilities. Chris36The Scope of the Employment ContractThe warehouse supervisor asked Braat Shah - a fork-lift t

28、ruck driver - to work overtime on Saturday from 8.00 - 16.30. Braat agreed but then did not turn up nor did he phone in. The supervisor could not complete an important order - the reason for the overtime. Braat was seen shopping in Tescos at 11.30.a union representative has asked the departmental ma

29、nager for time off with pay to attend the unions annual conferenceShort case studies 2 Chris37The Scope of the Employment Contracta van driver refuses to drive a van allocated to her for a normal delivery round. She argued that the tyres were worn and that when braking the van tended to veer. The su

30、pervisor points out that the van had passed its MOT. The mechanic had checked the vehicle.a biscuit-line manager was angry with an elected H&S rep. who was called away from her job by the company H&S officer to join an investigation into a warehouse incident. On return, the manager gave the

31、rep. a stern ticking off and later refused a request for a days leave. He argued that she had given insufficient notice (4 days normally required). It was Friday. The rep. wanted the next Monday off. Short case studies 3 Chris38The Scope of the Employment ContractEmployment Tribunal Claimssend ET1 w

32、ithin 3 months from effective termination date (+ 1 day)can lodge complaint whilst working noticeif without notice - termination effective on the day Ee. actually leaves work.Walk out without giving basic contractual/statutory notice?Claims out of time? Was it reasonably feasible to present a claim?

33、 Information on UFD comes to light outside time period?Conciliationcopy of ET1 to ACAS. Conciliation officer appointed. Parties contacted to secure voluntary settlementPre-trial assessment - full costs may be payable if go to full hearing and frivolous. Possible 150 depositAt full hearing. Complaina

34、nt must show that he/she has been dismissed unless conceded. Chris39The Scope of the Employment ContractRemediesReinstatement or re engagementTribunal can make RorR order or make a compensation award Reinstatement - employer to respond as if employee not dismissed. Make good pay/benefits, improvements etc.Re-engagement No specific performance. Employer decides.Comparable, suitable employment Does complainant want it? Tribunal specifies terms - job, award, arrears, senior