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Understand legislation and regulations relating to

health, safety and security in the travel and tourism


sector
Employment Contracts
An 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
Law
Employees differ from self-employed in relation to
Tax and National Insurance contribution
Common 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 1974
Some 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 Employed
It is usually the court which decide whether a worker would fall
under employees or self employed using three key tests
Control test established in the case of Yewens v Noaks 1880
which looks at who control the workers activities
Integration 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 employers 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
Contract
It 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 Contracts
Employment 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 1974
The broad responsibility of the employers
responsibility falls under the following areas
To ensure that all systems (work practices) are safe
That 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
Directives
These directives were phased into UK laws in 1992 and 1998
respectively
Some provisions include the fact that the employer has to ;
Carry out risk assessment in writing of all work hazards and
such assessments should be continuous
Introduce 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 advisers
Employees also have duties to take care of themselves and not
to interfere intentionally or recklessly with equipment
The workplace (Health, Safety and
Welfare) Regulation 1992
Besides 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)R2006
The 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 Contract

Repudiation (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 employers 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 Dismissal
Action for dismissal without notice
Brought in a usual court
Action to be brought within six years
Defendant has defence of gross misconduct
Remedies include notice period pay and usual
damages

Unfair Dismissal
Dismissal where job is still available
Action within three months at E. Tribunal
Must be employee of ages 18 to 65 years and above with at
least a year of service
Burden 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 Dismissal
Re-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
Compensation
Basic 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 service
22 yrs- 40 yrs, one week pay per year of service
41 yrs- 65 yrs plus, one and a half weeks per year of
service
Compensatory award of 85,200 except for
automatic unfair dismissal which goes beyond
Redundancy
Dismissal because job no longer exist or the
employer cannot continue
Action must be brought within six months
Must be employee of two year service of ages 18 to
65 and above
Notice 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 LAW
Regulated by the Human Rights Act 1998 to implement the European Convention
for the Protection of Human Rights and Fundamental Freedoms 1950
41 Member states signed the convention and now make up the Council of Europe
The 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
convention
It allows courts to set aside any precedent or past case which is incompatible with
the convention and follow previous ECHR cases
It 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 it
It allows courts to declare as void any secondary legislation which is incompatible
It require future statutes to be compatible with the convention
Its final appellate court is the European Court of Human Rights
Assessment on Employment
Law and Health and Safety
1. What is an employment contract
2. Give three differences between the two types
3. What is the control test
4. What is the multiples test
5. State two express terms in a employment contract
6. What does the Working time Regulation 1998 deal
with
7. State two key points highlighted by the health and
Safety at Work Act 1974
8. Where can an unhappy employee bring their case
Assessment Cont
9 What was the role of the Equal Opportunities Commission
10 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 dismissal
15 Which action will be sure to give the claimant employee more
money, unfair dismissal claim or redundancy claim?