1 Development of employment law2 Employment relationship3 Employer’s liability4 Termination5 Unfair & wrongful dismissal6 Discrimination7 Employee welfare legislation8 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 relationshipAgency v employment

Employment Agency

Authority

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

Independent contractor v employment

Employment Independent contractor

Independence Employee: ╳ √

Liability Employer’s vicarious liability Self liability

Reward Employee: salary Profit

Reward Employee: √ ╳

◇Statutory intervention in employment: written particulars

Employer must give written particulars of terms of his contract in 2 months of commencement of employment, indicating:

Name

Date of commencement

Continuos counting of previous employment, if any

Rate of pay and calculation method

Terms & conditions covering working hour, holidays, sick pay and pension scheme

Notice period for early termination

Job title

Disciplinary rules

Its 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 Reasonableness of non-competition clause

Sector Position Restraint clause Reasonable-ness

Reason

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

Equipment maker

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 ex-employer 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.

3 Employer’s liabilityContractual 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

他才15

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 Termination4.1 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 dismissal5.1 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