Understand legislation and regulations relating to health, safety and security in the travel and tourism sector

Employment ContractsAn employment contract is one where a party provides their services in terms of work in exchange of consideration which is the pay

It is hence a contract which deals with workers who are generally of two main types; employees (Contract of Service) and self- employed or Independent contractors (Contract for services)

It is essential to make these difference due to the fact that the two types of workers enjoy different rights in law

In case of a conflict, it is generally the court which makes the distinction as a matter of law using tests

Difference between the two in LawEmployees differ from self-employed in relation toTax and National Insurance contributionCommon Law rights such as vicarious liability Statutory rights such as those provided in the Employment Rights Act 1996 relating to leave, redundancy, unfair dismissal and the Health and Safety at Work Act 1974Some statutory rights apply to both such as the Occupiers Liability Act 1957/1984 and the Legislation of discrimination

Making the distinction between Employees and Self EmployedIt is usually the court which decide whether a worker would fall

under employees or self employed using three key testsControl test established in the case of Yewens v Noaks 1880 which

looks at who control the workers activitiesIntegration test established in the case of Cassidy v Ministry of

Health 1951 which looks at whether the workers activities are well integrated to those of the employer’s main activity

Economic reality or multiples test established in the case of Ready Mixed Concreate v Ministry of Pension 1968, where the court looks at who makes the most economic benefit between the worker and the employer to make the decision. In doing this the court looks at a number of factors

Key Features of an Employment ContractIt is formed in precisely the same ways as a normal

contract with all the essential elements of Offer, Acceptance, Intention to create legal relations, Consideration, Capacity and Form all taken into account for the contract to exist

The same vitiating factors of misrepresentation, duress or illegality apply here which may prevent the contract from being enforced

Just like in normal contracts, the terms could be either express (from the parties and must be communicated within two months) or implied (from law; customs, courts and statutes)

Court Implied Terms (Duties Employers)Pay reasonable remuneration

Repay reasonable expenses

Provide a safe place of work

May not provide work if payment is made in full

May not provide a reference however if they do, it must be positive

Court Implied Terms (Duties of employees)Fundamental obligation of faithfulness

Obedience of reasonable instructions

Duty of skill and care

Account for employers property

Duty not to delegate to an outsider

Statutory Implied Terms for employees in Employment ContractsEmployment Rights Act 1996 As amended in 1999,

2002 and 2008 dealing with leave, maternity leave, paternity leave, redundancy pay, notice for dismissal

Working Time Regulation 1998 dealing with maximum number of hours for work by an employee

The National Minimum Wage Act 1998 which deals with the list that workers get paid per hour of work

The Health and Safety at Work Act 1974 which deals with safety and security of employees at the work place

Legislation on Discrimination

The Health and Safety at Work Act 1974The broad responsibility of the employers’

responsibility falls under the following areasTo ensure that all systems (work practices) are

safeThat the work environment is safe and healthy

(well lit, warm, ventilated and hygienic)That all plants and equipment must be kept up

to the necessary standard Instruction, training and supervision should be

directed towards safe working practices and the safety policy communicated to all staff

Further rules through EU DirectivesThese directives were phased into UK laws in 1992 and

1998 respectivelySome provisions include the fact that the employer has

to ;Carry out risk assessment in writing of all work hazards

and such assessments should be continuousIntroduce controls to reduce risks Share risk hazards with other employers including those

in adjoining premises and revise safety policy in the light of such information

Employ competent safety and health advisersEmployees also have duties to take care of themselves and

not to interfere intentionally or recklessly with equipment

The workplace (Health, Safety and Welfare) Regulation 1992Besides requiring that all offices within the EU should be

properly ventilated with fresh or purified air, it specifically deal with temperature as well

The room temperature should not be less than 16 degree Celsius where people are sitting down or 13 degrees Celsius where they are moving about

Windows clean and unobstructed and floors cleaned at least weekly

Escalators should function safely and have readily accessible emergency stop devices

Sanitary conveniences and washing facilities must be suitable and sufficient

An adequate supply of drinking water should be available with suitable drinking vessels

Legislation on Discrimination and the Commissions responsible for Regulation Sex Discrimination, Equal Pay Act (EPA) 1970, Sex

Discrimination Act (SDA) 1975 dealing with pay and all other grounds respectively (E.O.C)

Race Discrimination, Race Relations Act (RRA) 1976 dealing with discrimination on groups of colour, race or nationality (C.R.E)

Disability Discrimination, DDA 1995 dealing with mental and physical discrimination (Disabilities Rights Commission, D.R.C)

Discrimination on grounds of Religion, Sexual Orientation, Employment Equality (RB) R 2003, EE(SO) Regulation 2003

Discrimination on grounds of Age, EE(Age)R2006The Human Rights and Equalities Commission

(H.R.E.C)now oversees enforcement of the above legislations

Termination of employment contracts

Dismissal with notice (Agreement)Fixed Term contracts not renewed

(Performance)

Despite no breach, the employee has a statutory right to bring an action for unfair dismissal if job is available

Breach

Breach of Employment ContractRepudiation (rejection of the contract) by

employee or the employer

Summary Dismissal where an employee was instantly dismissed without notice

Constructive Dismissal where the employee resigns due to employer’s breach

Actions available on Termination

Wrongful Dismissal (common law) action available for employees who are dismissed without notice

Unfair Dismissal (statute) action available for employees who have been dismissed while their jobs are still available

Redundancy (statute) available for employees dismissed because the job no longer exist

Wrongful DismissalAction for dismissal without noticeBrought in a usual courtAction to be brought within six yearsDefendant has defence of gross misconductRemedies include notice period pay and usual

damages

Unfair DismissalDismissal where job is still availableAction within three months at E. TribunalMust be employee of ages 18 to 65 years and above with

at least a year of serviceBurden on the employer to prove one of five fair

reasons and procedure as prescribed in the Advisory, Conciliation and Arbitration Services (ACAS) code of practice

Under the Employment Act 2008, the powers of ACAS has been enhanced in terms of conciliation from the start to end of a case at the Tribunal.

Dismissal may be automatically unfair in a number of instances such as pregnancy and trade union membership

Remedies for Unfair DismissalRe-instatement; Being given same job back

Re-engagement; Being given a job of similar ranking to previous job

Compensation which falls under basic and compensatory awards

CompensationBasic award is for a maximum of 20 years and a

maximum weekly pay of £430.18 yrs- 21 yrs, half week pay per year of

service22 yrs- 40 yrs, one week pay per year of

service41 yrs- 65 yrs plus, one and a half weeks per

year of serviceCompensatory award of £85,200 except for

automatic unfair dismissal which goes beyond

RedundancyDismissal because job no longer exist or the

employer cannot continueAction must be brought within six monthsMust be employee of two year service of ages

18 to 65 and aboveNotice to be given to employees or their

representative and inform the secretary of state if more than 20 are to be made redundant

Compensation is based on age and length of service

HUMAN RIGHTS LEGISLATION AND ITS EFFECT ON ENGLISH LAWRegulated by the Human Rights Act 1998 to implement the European Convention for the Protection of Human Rights and Fundamental Freedoms 195041 Member states signed the convention and now make up the Council of EuropeThe legislation binds public authorities to uphold the rights of persons who could be natural or corporations except there is a legitimate need to derogate from the conventionIt allows courts to set aside any precedent or past case which is incompatible with the convention and follow previous ECHR casesIt requires courts to make a declaration of incompatibility for sections of primary legislations not compatible with provisions of the convention during interpretation and for Parliament to update itIt allows courts to declare as void any secondary legislation which is incompatibleIt require future statutes to be compatible with the conventionIts final appellate court is the European Court of Human Rights

Assessment on Employment Law and Health and Safety1. What is an employment contract2. Give three differences between the two types 3. What is the control test4. What is the multiples test5. State two express terms in a employment contract6. What does the Working time Regulation 1998 deal

with7. State two key points highlighted by the health and

Safety at Work Act 19748. Where can an unhappy employee bring their case

Assessment Cont…9 What was the role of the Equal Opportunities Commission10 What was the role for Commission for Racial Equality 11 What is the meaning of Genuine Material Difference

(GMD)12 What is Genuine Occupational Qualification (GOQ)13 Which body is now responsible for enforcing equality

laws in the UK?14 Distinguish wrongful dismissal from unfair dismissal15 Which action will be sure to give the claimant employee

more money, unfair dismissal claim or redundancy claim?