12 Employment Contract

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1 Development of employment law 2 Employment
relationship 3 Employers liability 4
Termination 5 Unfair wrongful dismissal 6
Discrimination 7 Employee welfare legislation 8
Collective bargaining
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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
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2 Employment relationship Agency v employment
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Independent contractor v employment
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?Statutory intervention in employment written
particulars Employer must give written
particulars of terms of his contract in 2 months
of commencement of employment, indicating lName l
Date of commencement lContinuos counting of
previous employment, if any lRate of pay and
calculation method lTerms conditions covering
working hour, holidays, sick pay and pension
scheme lNotice period for early termination lJob
title lDisciplinary rules lIts status in state
pension scheme
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? Implied terms of the courts (1) Employers
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
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(2) Employees duty Be ready and willing to
work Use reasonable care and skill Obey
lawful orders Look after employers property
Act in good faith
? Reasonableness of non-competition clause
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(No Transcript)
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3 Employers liability Contractual liability Tort
liability Illustration A is employed Henrys
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 Henrys Diary.
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Sweatshop v workers safety
??15?!
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Sun Wenliubadly beaten due to resignation,spendin
g 6 months for crawling home from Henan to
Shandong. Only 44,look like 60s!
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4 Termination 4.1 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
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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
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(3) Redundancy payment Compulsory standards apply
if no special terms in the contract giving them
more
5 Unfair wrongful dismissal 5.1 Unfair
dismissal (1) It is unfair unless justified in 5
aspects Capability or qualification to do the
job Employees 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
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(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
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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
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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
ones sex
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(3) Exceptions Work done wholly or mainly outside
UK Job performed in private households (4)
Permissible discrimination
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. 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 cant 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 employees sex. The job is one of two held
by a married couple
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(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
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(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
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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 Branchs 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.
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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 plaintiffs 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.
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7 Employee welfare legislation (1) Working
conditions Health Safety at work etc Act
1974 (2) Unemployment insurance (3) Workers
compensation Non-fault based
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8 Collective bargaining (1) Trade union May
sue and be sued Quasi-corporate body (2)
Collective agreement