A contract of employment may be viewed as illegal, if for example, an employee and employer agree that part of the employee’s pay will be paid in cash and not subject to deductions of Income Tax and National Insurance. In this case the parties to the contract are seeking to defraud a third party, Her Majesty’s Revenue and Customs and in this instance the employee will generally be unable to invoke the benefits of employment legislation. In practice, an employee who is knowingly participating in an illegal contract would be unable to pursue rights, such as taking a claim for Unfair Dismissal if the employment is terminated. A contract may be illegal from the outset, or become illegal because of the mode in which it is carried out.
The Home Office has updated guidelines on illegal working checks including information on illegal working offences which were recently introduced by the Immigration Act 2016. The new guidelines highlight two new criminal offences:
- where a person subject to immigration control continues to work when disqualified from doing so, which can result in the seizure of wages earned from illegal working, an unlimited fine and to up to six months’ imprisonment; and
- where an employer employs an illegal worker when there is reasonable cause to believe that the person does not have the right to work (in addition to the offence of knowing the person does not have the right to work).
- Access government guidelines here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/536953/An_Employer_s_guide_to_right_to_work_checks_-_July_16.pdf
In addition to these guidelines, the government has also issued a code of practice for employers on the avoidance of unlawful discrimination in employment practice while seeking to prevent illegal working. The guidance advises that in order to avoid discrimination when checking the right to work of job applicants and employees, employers should adopt fair and uniform policies which apply to all employees. Read the guidelines here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/311831/antidiscriminationcode2008.pdf
An implied contractual term refers to a term which is generally not expressly stated in a Written Statement of Employment Particulars, or other contractual documents, but which is none-the-less binding on the parties to a contract. For example, employers have an implied duty to provide their employees with a safe working environment. Employees have an implied duty not to do anything that would undermine their employer’s reputation or competitive advantage, for example, disclosing trade secrets to a competitor. A breach of an implied term could result in disciplinary or dismissal against an employee or in the instance of an employer carrying out the breach, lead an employee to take action for breach of contract and/or constructive dismissal.
It is easy to forget that the selection process is only the beginning of the employment relationship and the future of that relationship depends to a considerable extent on how the new employee is settled into the job. In general there is a higher rate of labour turnover among new employees. A good induction programme makes business sense, whatever the size of the organization, and whatever the job. I nduction does not need to be a very formal process but it needs to be properly managed. I n many organizations it will be carried out informally by the new start's manager or supervisor on a day-to-day basis. Nevertheless, having a structured checklist to follow is useful for both parties. Most induction will consist of meeting and talking with new colleagues, watching activities and asking questions. It may be appropriate to provide certain information in written form; and if the organization has a company handbook, this can often act as an aide memoire covering important aspects of the company organization and how it functions.
Industrial Action is a concerted stoppage of work, or action short of strike that is taken by employees in contemplation or furtherance of a Trade Dispute. Official Industrial Action is action which is called by someone who is authorised to do so by the Trade Union’s Rule Book. Unofficial Industrial Action is action which is called by someone who is not authorised to do so and is viewed as unlawful. In order to preserve immunity from legal action by an employer a Trade Union must take steps to repudiate unofficial industrial action. Lawful industrial action is action which has been carried out in response to a ballot for Industrial Action.
DfE Code of Practice - Industrial Action Ballots and notice to Employers
The Information Commissioner is the UK's independent public body set up to promote access to official information and protect personal information by promoting good practice, ruling on eligible complaints, providing information to individuals and organisations, and taking appropriate action when the law is broken.
See Data Protection
Although there are different types of insolvency, an organisation usually becomes insolvent because their debts exceed the value of the company’s assets or the company does have enough finance to cover its debts. Terms associated with insolvency include Administration, Liquidation or in the instance of a partnership or Sole Trader, Bankruptcy. Individuals working in an insolvent company may be entitled to Redundancy Payments.
Employees - Your rights if your employer is insolvent
An employee who believes they have been dismissed for one of the reasons listed below can lodge a claim for Interim Relief to the Industrial Tribunal and if upheld will result in a reinstatement/re-engagement order where the employee is paid their normal wages or salary until the full dismissal hearing. A claim for interim relief must be brought within 7 days of the dismissal and can be brought when the employee believes the dismissal was for:
- carrying out or proposing to carry out their functions a safety representative, or member of a safety committee
- carrying out their functions as an elected work force representative in relation to Working Time Regulations
- carrying out their functions as an Occupational Pension trustee
- being or not being a member of an independent Trade Union or for taking part in the activities of a Trade Union
- making a Protected Disclosure
- supporting or not supporting an application for Trade Union Recognition
- exercising or seeking to exercise their right to be accompanied at a disciplinary or grievance hearing or acting/seeking to act as a companion for a colleague