|
|
Public
Interest Disclosure-Protected Disclosures
Sometimes known as whistle-blowing. Most major
companies and Public Authorities have policies in place to regulate
such disclosures and it is important, before making any Disclosures ,
or potential disclosures, that the policy is studied. A
detriment suffered by making a disclosure is likely to be much more
significant if the person making the disclosure does so under the
employer's policy.
Before making any Disclosure the facts should
be carefully checked, in so far as possible , given that in some cases
, perhaps many cases , there is no open evidence of wrong-doing.
Disclosures must have some basis in reasonable fact and should not be
used simply to gain some tactical advantage over the employer , for
instance as commonly occurs , in response to some disciplinary
sanction or dispute, without there being some real basis for making
the disclosure.
The alleged wrong-doing may not actually be
occurring, however protection is afforded to the Disclosure if is made in good
faith. The burden to show good faith increases if complaints are made
outside the organisation.
Detriments caused by Protected Disclosures are
classed as discrimination and additional awards can be made against an
employer.
|
|
Employees,
workers and Contracts of Employment.
The determination of who is , or who is not an employee involves
considerable enquiry but there are some simplifications. Most people
understand from their own experience how employers behave and so a
simple question would be to ask by how much does my "employer" act as
a normal employer. For instance:
Factors tending towards employment
- does he provide all the tools and equipment
needed,
- does he provide training at his expense,
- does he apply disciplinary sanctions,
- does he provide transport to and from sites.
- does the employee in any way represent the
company.
Points tending against employment :
- worker is able to nominate replacements
-worker registered for VAT on his own account.
-worker holds SE6 or other tax certificate
which prevents the employer deducting basic rate tax.
-worker carries out work for others.
-worker is in some other business "on his own
account"
-worker can chose when he can work and when
not.
-worker provides a substantial part of the
equipment needed.
None of the above are exhaustive nor
determinative in the sense that the presence or absent of one or
another makes or breaks employment , rather all have to be considered
together to form a ( horrible word) a "holistic" view of the
relationship. Only then can its true nature be ascertained. There are
many more examples for and against employment - each case will depend
on its own specific facts.
|
|
Fair
Employment Law
|
Public
Interest Disclosure-Protected Disclosures
Forming The Complaint.
A protected Disclosure occurs if an employee makes a disclosure to
his employer , a prescribed person , a Minister of the Crown(i.e a
Government Body) or any
other responsible person (with certain limitations), of a matter which
the employee reasonably believes would indicate criminal
behaviour or offences are being committed, legal duties and
obligations are being avoided, miscarriages of justice are occurring,
Health and Safety is being compromised or that the environment is
being damaged (s.43B Employment Rights Act ). Note that there must be
some "Public Interest" - a complaint by an employee that he
or she ,
rather than others, is suffering some detriment remains merely a
grievance and the employee must have a reasonable genuine belief that what he
discloses is actually occurring, whether or not it actually
is occurring.
Likely defences are that the employee had no reasonable belief,
that is to say the disclosure was made on flimsy or unsustainable
grounds, the employee had some financial or material motive in
making the claim or simply that there was no genuine belief ,
reasonable or otherwise or that the Disclosure is made in a manner
contrary to the Regulations, that is to say to a person who does not
constitute a relevant person for the purposes of the Act. See s.43G &
s. 43H .
|
|
Employees,
workers and Contracts of Employment.
A number of people at work
might be surprised to learn that although they think they are self
-employed, they are more accurately described as being "self taxed" and
are in fact subject to a contract of employment and have the right not
to be Unfairly Dismissed. Her Majesties Inland Revenue have intervened
in many cases to direct employers to class workers in certain
industries as employees, but old practices die hard , in particular when
the "worker" recognises and enjoys the benefit of NOT being employed.
But the test of a contract of employment rests on an ancient concept ,
that of master and servant , if the master directs the servant to work
and the servant complies by performing personal service in return for
pay , then it is likely that some form of service contract exists
between them. If there is a high degree of control and direction , a
regular expectation of the giving and receiving of work and pay then
such a contract is very likely to a contract of service , in other
words a contract of employment and the worker is an employee. He or
she has
all employment rights. It is simply a matter of
deciding that in that relationship there exists a certain minimum of
mutual obligation between the parties to constitute a contract of
employment.
Whilst all employees are workers there are a class of workers who
offer personal services ( that is to say they turn up and work
personally) but the arrangement between the parties fails to reach the
required minimum of mutual obligation necessary to constitute a
contract of employment. A tribunal faced with such a case , for
instance where a person says he has a contract of employment whereas
the employer denies that relationship , must look carefully at all the
facts in the relationship , including critically how the agreements
were formed in the first place. A worker , rather than an employee,
may typically be a person who works sporadically ( albeit for
significant periods of time) for an employer but each party has agreed
that they should not be bound by any obligation. It can be likened to
the old concept of "casual work" - put simply "here is some work ,
take it or leave it". Or on the other hand the worker may signify to
the employer "I'll take the work but I can't say how long I am
available". Significantly neither party signs up to any degree of
obligation , both approach the relationship at arms length in respect
of any mutual obligation. A worker has the right to have holiday pay
for the duration of his engagement ( pro -rata), the right to receive
wages without deduction , SSP subject to the SSP rules but
NOT the right to statutory notice. Significantly a substantial range
of rights against discrimination are available. It is the authors view
however if the "service agreement" between the parties includes some
period or notice, that can be brought to a tribunal since it arises in
a contract concerning "employment". |
|