3408 Term 1 Coursework 2012-13 Law 3408 Essay

Excerpt from Essay :

3408 Term 1 Coursework 2012-13

Law 3408 course work

Victoria's Case

Employers engage workers on either contracts of service or contracts for services. Therefore, any person engaged under a contract of service qualifies as an employee and enjoys full protection as per the employment legislation. In addition, a self-employed individual must possess a contract for services with the party for whom one offers their services. It is important for people to acknowledge their status whether they fall under the employed or under the self-employed (Sargeant and David, 2012). In Victoria's case, it is apparent that she does not have a written contract; or rather, a contract to indicate what terms she works under. This clearly verifies that Victoria does not fall under any category of employment because she lacks a contract.

Under the employment law, it is evident that if there is no contract between two parties (employer and employee), then a worker does not qualify as an employee of the client. According to the definition, "An employee is anybody individual who has entered into a contract or one who offers services under a contract of employment whether the contract is for service or an apprenticeship." However, it further suggests that this does not need writing in order to qualify as a contract. Nevertheless, if the contract does not cater for the "employee" and does not affect the legal obligation such as protection, social and security, and taxation rights, then the individual does not qualify as an employee. In Victoria's case, she pays her own tax and national insurance from her earnings.

The HY Organization is not affected in any way as per the protection and legal obligation explained in the employment law. In addition, this is another concrete proof that Victoria does not qualify as an employee. A significant aspect when testing for employee status is training. From the case scenario, HY provides opportunities, whereby its therapists attend courses on addiction. This shows that HY indicates a special manner in how it could want its employees to perform services in a particular way (Honeyball, 2011). The case reveals that, Victoria attends the training regularly. In addition, Victoria follows an order set by HY, whereby, HY assigns clients to Victoria, and she follows on that, renders her services personally are some tests that proof existence of employment; however, Victoria is not always available to offer her services showing that there lacks an existing employment status.

John's Case

For many years, the courts have recognized that an employer has the power, in certain circumstances, to enforce suspension against an employee. However, it is important to note that employers recognize the distinction between disciplinary suspensions, (referring to a punitive measure for a reproachable act committed during work), and administrative suspension (this refers to a preventive measure, based on the employer's interest when the business calls for it, even in the absence of an act committed by the employee while working). The school was right in suspending John because the suspension did not include suspension of his salary. This is right because his employer had not finished looking into the allegations of sexual misconduct against John (Sargeant and David, 2012). For this case, the type of suspension imposed on John falls under preventive, and therefore an administrative suspension because the allegations initially do not have substantial support in any way.

However, a question arises on whether, it is a violation, or breach of contract when an employer places an employee under administrative suspension. In a number of Supreme Court case, it is apparent that this type of suspension (preventive) does not in any way show that the employer has prejudged the employee as accountable for the charges he was asked to answer. In this case, by placing John under preventive suspension did not mean that it was a conclusion that he had committed the sexual misconduct; however, it was a significant measure in order to protect the school, the continuation of the school's operations, and resources pending investigation for the claimed misconduct in the part of John the teacher.

In addition, it is evident that the preventive suspension did not last for long, however, if it did, then it would qualify as a breach of contract. The labor law outlines and provides for this matter of preventive suspension. The labor code allows the employer to place the worker allegedly involved under such a status if his continued employment poses a threat to the operations of a firm (Honeyball, 2011). Working in a school under such allegations could only endanger John's life, morality, and appearance to students, who may attack or insult him. Therefore, the school was in line with the employment law, when it suspended John to allow for investigations on the allegations of sexual misconduct.

Sue's Case

The relationship between the employer and is controlled by the terms and conditions of the employment contract. Under the employment law, these terms and conditions may either be express or implied, and often achieved out of negotiations between the parties before employment. In addition, the employment law incorporates both express and implied terms into an employment contract. However, any variation to the employment contract, unilaterally, by any party, is possible only through an agreement, whether express, implied, tactic, or by acquiescence (Honeyball, 2011). While the law may constrain an employer in his ability to adjust an employee's terms and conditions of employment, it is possible to alter work practices, suspend or discontinue practices at the discretion of an employer.

In this case, Sue has worked for Bruddersford University for thirty years. From the case study, the students enjoy her teaching although she uses traditional teaching methods. In addition, the University wants to eliminate these traditional teaching methods and incorporate the use of tablets. However, this does not auger well with Sue, so she refuses to follow her employer's alteration of work practices (Sargeant and David, 2012). Under the employment law, employers can alter, or suspend work practices at their discretion; however, they cannot alter the terms and conditions because the law does not provide for alteration.

Although the content of Sue's job is considerably altered, this is not a breach of contract. Under the employment law, the employer can abolish certain duties and replace them with other duties; in addition, the change, from traditional teaching methods, to using a tablet, was not at the employer's discretion rather for the best interest of the school (Kidner, 2012). In addition, the alteration in the work practices does not affect Sue's principal function as a lecturer, such that the adjustment did not change the rate of pay, hours of employment, duration of holidays, sick leave and retirement fund rights. This is in accordance with the employment law and the employer can change the work practices because the law allows him or her.

Belinda's Case

Leaving a job to start a company that competes directly with your previous employer is a legal issue, and employees with such intentions should understand what the Employment law defines this act. As for such, it is important for the employee to verify whether they have signed a non-disclosure or non-compete agreement law with their employer. If one has signed any of the outlined contracts, then this is an enforceable agreement, which may limit their ability to start their own, company in line with the employer's business (Kidner, 2012). For Belinda's case, it is apparent that she had not signed any employment contract that would have forbidden her from doing this. In addition, it is important to note that, non-disclosure agreements may prevent an employee from utilizing information acquired from the company, which the employee may use to start an individual company.

In Belinda's case, the scenario reveals that she worked for Healthy Eating Ltd. For five years. Over this time, she must have gained a lot of experience necessary for her to handle her own company in line with Healthy Eating Ltd. It is apparent that she is competing against Healthy Eating Ltd.; however, under the employment law, Belinda is safe because there was no express term, or rather she had not signed the non-disclosure agreement (Honeyball, 2011). Therefore, she is safe to use the knowledge gained while working at Healthy Eating Ltd. In her company. In addition, it is evident that Belinda must have used her own resources to start her company; therefore, Healthy Eating Ltd. cannot term Belinda's company as a company project. However, if she had used the company's resources, through a proposal, then her company, because of a business idea will fall under company project.

Under the employment law, if the company tries to stop Belinda's business, then the company's action is illegal. In addition, this case reveals that Belinda has not breached any employment contract; however, it is only morally sound to notify your employer about leaving the company to start an individual business. It is important to show gratitude to the employer for the opportunity to work and skills gained while working. It is significant…

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