Negotiation between Law Firms for Solving the Issues on Determining the Employment of the Employee - Essay Example

?Some of the employment contractual issues in this case are: Status of Employment One of the key issues to be decided in this case is determining thestatus of the employment and whether You Can was actually the employer of Mary or not. One of the key elements to be decided in this regard is the status of employment in terms of employee and the self employment. Normally, a permanent employee is one whose national insurance and tax is paid by the employer however, in case of self employed individuals the same are paid by the employee himself or herself.1 A careful observation of the D01 contract between the charity and the employee would suggest that contract easily spelled out the details the national insurance as well as income tax as it will be paid by the employee. This suggests that the Mary was not technically an employee of the charity as she was responsible for the payment of her national insurance and income tax. It is also however, important to note that just paying the national insurance and income tax by the employee does not automatically term the employee as the self employed. This also depends upon who decides the work and what are the terms and conditions of the contract and some other factors.2 One of the key contractual issues arising out of this case therefore would be to make a decision on determining the employment of the employee and her contractual relationship with the employer. This is probably the key element in the case. Length of the Contract and legal status of employment Document D01 outlines that the contract for employment was from September to July which totals to one year of services with the current employer i.e. You Can. According to document D08B, Mary has in fact accepted the offer to renew her contract and as such both the employer and the employee are in contractual agreement to honor each other’s commitment. According to the English Contract Law, a contract is formed when there is an offer, acceptance and consideration therefore a valid contract has to contain these elements to be enforceable at law.3 It is critical to understand that the You Can has actually made an offer of employment to the Mary which was duly accepted against the consideration of wages. As such, this contract is valid till 31st July 2010 and it can only be terminated according to the conditions outlined in the employment contract i.e. conditions mentioned in document D1 therefore You Can may significant legal challenge in this regard. As such, You Can made an offer to renew the contract of Mary which was duly accepted and therefore is binding on You Can to honor different conditions and obligations stipulated in the contract. You Can also failed to properly terminate the contract despite the fact that a Marry clearly indicated her intentions to take a break from teaching during the session. This should therefore be viewed from the perspective of forming a contract between two parties and legal obligations arising under the contract. There are different conditions under which the overall status of the employment of a person is decided as to whether a person is a self employed or an employee. Most importantly, it is critical to assess as to who directs the work under the circumstances and how the employee is paid. It is important to note that You Can actually directs the work however, Mary is not paid regularly as she is only contracted to do a part time job of once a week. Accordingly, first condition may entitle Mary as a employee of the charity however, since she is not paid regularly therefore she may not claim that she is an employees. It is also important to note that rights given to en employee under the contract are always in addition of the rights given under the law of the land. As such rights such as paid holidays etc should also be given to the employees and employers are obliged to complete this condition. However, it is important to note that contract in DO1 clearly outlines that Mary may not be entitled to some entitlements under the contract which may be in direct conflict with the laws of the land. Mary therefore can actually challenge some of the clauses of the contract and maintain that her employment rights were not fully covered under the contract of the employment and that she was mistreated during the process of awarding her the job contract. Continuous Employment Another important legal and contract issue arising from this case may be the case of defining the continuous employment. Even though Mary may be termed as a self employed individual because she pays her own income and national insurance however, this does not necessarily mean that her rights may be subjected to her employment status. It is also important to note that continuous employment usually means working for same employer for considerable period of time.4 It is however, important to note that considerable time has not been defined under the law and reasonable judgment is applied. In this case, it is clear that Mary was in continuous employment with You Can and as such she may be entitled for the break in her services. According to the rules, breaks in employment due to maternity, sick leave, paternity leave as well as holiday breaks and temporary lay-off all could not deter any employee from claiming that he or she is in continuous employment with the employers.5 Accordingly, Marry therefore can easily claim to be in continuous employment regardless of the fact that she was away from the work for some period of time. However, as per the contractual agreements, she provided her replacement therefore obligation her contractual responsibilities and obligations. You Can therefore has to prepare to make a defense if Mary claims to be in continuous employment and prove in the court of law that her acceptance of contract should be viewed as her employment with You Can. Dismissal Another important legal issue which may arise as a result of this dispute is to determine whether the dismissal was fair or unfair and whether Mary was given considerable opportunity to plead her case. Though, it may be difficult for Mary to prove the case on the grounds of maternity leave or law favoring Women at work environment, however, determining the legality and fairness of the dismissal will be another important legal and contractual issue to be settled. It is also important to note that Marry was not technically dismissed and according to the conditions stipulated in the D01, she could only be terminated from her job, You Can has to give a one month notice before the termination or dismissal can take place. It is important to note that Marry was not given proper notice and she was simply replaced with another instructor despite the fact that she clearly mentioned in D11, Mary clearly mentioned, while accepting the contract that Marjory should be given a separate contract. As such this may be considered as a counter offer under the contract act which was also duly accepted by You Can. Accordingly, You Can should have given a separate contract to Marjory as stipulated under the terms of negotiations between Mary and You Can. You Can should have provided a one month notice to Mary if her employment were to be given to another person. This is because both parties were under contractual agreement to oblige terms of the contract. It is critical to note unfair dismissal can arise when an employer do not have a valid reason to dismiss an employee.6 Mary therefore can claim that she was unfairly dismissed because You Can failed to provide her any reasonable justification for replacing her in the job. Since she was under contract with You Can therefore it would have been better if You Can could have given a legal notice to Mary to first terminate the contract and than appoint or replace Marjory at her place. You Can however, claim that since Mary was a self employed person therefore she may not claim that she has been dismissed unfairly. Though the question of determining the employment of the employee is still a valid and important legal question to be determined, it is important that You Can should consider using this argument in order to ensure that she was not dismissed unfairly. In case of deciding the employment status and subsequently deciding the unfair dismissal, an employment tribunal can also be involved. This is owing to the fact that deciding on the employment status of an employee often falls within the purview of Employment tribunal which decides about the employment status of an employee. As such this whole case may first be referred to employment tribunal to first decide the legal status of the employment of Mary and than subsequently other legal issues can be sorted out in order to prove that You Can was justified in replacing Mary’s job. Conclusion The overall process of using the notes involved locating the sources first and than tracing out the information required for preparing the assignments. This not only involved looking at a diversified range of sources but also taking into consideration the overall requirements of the law and how information actually fits into overall requirements of the case. Since this case presented different but connecting legal issues to be dealt with therefore I focused on identifying the resources which comprehensively address different legal issues which may be arising out of this case study. It is also important to note that my notes were mostly taken from websites specially government run websites offering advice to the employees regarding their employment rights and obligations. These notes therefore also offered a critical insight into defining the overall relationship between employers and employees and what are the rights and obligations of each party to each other and how these rights can be enforced at law. Bibliography 1. ‘Contracts of employment (Adviceguide.org.uk, 2011) http://www.adviceguide.org.uk/index/your_money/employment/contracts_of_employment.htm#are_you_an_employee_or_self_employed accessed 8 May 2011. 2. HM Revenue & Customers ‘Employment status’ (HM Revenue & Customs, 2011) http://www.hmrc.gov.uk/employment-status/index.htm accessed 8 May 2011 3. Offer’ (4lawschool.com,2011) accessed 8 May 2011 4. continuous employment’ (British Employment Law, 2011) http://www.emplaw.co.uk/lawguide?startpage=data/020009.htm accessed 9th May 2011 5. Eversheds Legal Services Ltd v de Belin EAT/0352/10 6. Unfair Dismissal’ (Law on the Web, 2011) < http://www.lawontheweb.co.uk/Employment_Law/Unfair_Dismissal> accessed 9th May 2011 Read More