Unfair dismissal
Employers can only dismiss employees fairly for one of the following 6 reasons: capability; conduct; redundancy; retirement; contravention of a statutory duty or some other substantial reason. Employers must also follow a fair dismissal process which complies with the statutory procedure otherwise the dismissal will be automatically unfair. If an employee has more than one year’s service he or she may bring a claim for unfair dismissal.
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Wrongful dismissal
Wrongful dismissal is another name for breach of contract. In other words, where the employer has breached a term of the contract of employment, for example, by not paying notice pay on the termination. If the breach occurs during employment and is sufficiently serious the employee may be entitled to resign, having been constructively dismissed, and claim wrongful dismissal against their employer.
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Discrimination
Age, race, religious belief, sex, sexual orientation, gender reassignment and disability discrimination. Employees, including those self employed workers who work personally for an organisation, have the right not be discriminated against. Disabled workers must also be accommodated by making reasonable adjustments. No qualifying period of employment is required in order to bring a claim. As compensation is unlimited for claims of this nature it is essential that employers have proper equal opportunities and harassment policies in place.
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Stress and work related claims
Employers have a duty not to cause psychiatric damage to their employees by requiring them to undertake too much work and not providing adequate support. If they breach this duty they may be held responsible. It is essential for employers to have adequate policies and procedures in place and fully implemented to ensure that workers are fully supported.
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Whistleblowing
Whistleblowing is defined as “giving information (usually to their employer or the authorities) about illegal and underhand practices.” Employees have the right be protected against suffering any detriment as a result of making a disclosure, for example about breaches of health safety requirements, environmental damage. So for example, if an employee raises the alarm about the illegal practices of their employer and was subsequently dismissed because of this, the dismissal would be unfair. In these cases the compensation is unlimited.
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Equal pay
The Equal Pay Act 1970 is part of the anti- discrimination legislation and gives men and women the right to the same pay and terms and conditions of employment for doing the same work (like work), work rated equivalent or work of equal value. Pay has a wide meaning and includes benefits.
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Compromise agreements
In order to compromise an employee’s claims against an employee, the parties can enter into a compromise agreement. This agreement must comply with certain legal requirements and the employee must obtain independent legal advice in order for the agreement to be effective. It is important to get the wording right too, otherwise all claims intended to be compromised might not be caught by the agreement.
For employees, we don't just rubber stamp the agreement, we will carefully
consider whether it is in your best interest to sign the agreement, and often
negotiate better terms and conditions for you.
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Grievance/disciplinary procedures
Since 2004 statutory procedures have been in place which all employers and employees must follow when either taking disciplinary action against an employee or when dealing with a grievance raised by an employee. The consequences for not doing so are draconian. For example, if an employee does not raise a grievance before making a claim to the employment tribunal their claim will be thrown out. For employers failing to follow the procedures will render a dismissal automatically unfair. Fortunately these procedures are on their way out!
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Breach of contract
A contract of employment contains both implied and express terms. The express terms are those written down into the contract (or orally agreed), whereas the implied terms are implied by law. It is important that employers are aware of both to ensure that they do not breach these terms. Likewise employees should be aware of their obligations to their employers. Arguably the most important implied term is of mutual trust and confidence. If an employer fundamentally breaches this term it could find that the employee walks out and claims constructive dismissal.
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Wages disputes
Wages disputes concern matters such as unlawful deductions from pay, failure by an employer to pay wages, or notice pay and failure to pay the minimum wage. Employers should always ensure that they keep abreast of the current rate of the minimum wage.
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Redundancy
Redundancy has a specific technical meaning and is often misunderstood by employers and employees alike. Redundancy is defined as where the employer has ceased to carry on business for the purposes of which the employee was employed or to carry on business in the place where the employee was employed or where the requirements of the business for work of a particular kind has ceased or diminished either entirely or in the place where the employee worked. Not only does the employer have to ensure that the employee is genuinely redundant but also that a fair redundancy procedure is followed to be confident that the dismissal will be held fair.
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Maternity, paternity & adoption
Both mothers and fathers of biological and adopted children have rights to take
family leave to take care of their children. These rights continue to expand and develop as family friendly policies remain at the top of the political agenda. It is important that employers ensure that their policies and practices are up to date in this constantly changing area of employment law. Likewise employees should ensure that they are fully aware of their rights before during and after they take family leave
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Flexible working
From April 2003 parents and other responsible for the care of children up to the age of 6 (18 if the child is disabled) have the right to request to work flexibly. Recently this was expanded to include carers of adults. It is likely that this will be expanded again to include parents and others of children under 18, and perhaps eventually to all employees. To be able to apply under the flexible working legislation the employee must have 26 weeks’ service.
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Employment contracts, policies
It is surprising how many employees do not have a written contract of employment. Yet it is a statutory requirement to provide employees with a written statement of terms within 2 months of the employment commencing. A written contract also helps to evidence the agreed terms between the employee and employer, which may later be in dispute. It is also important to have up to date policies and procedures, not only do these help to make clear what is expected of employees but also helps to create a professional and competent work place.
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TUPE and related reorganization
The Transfer of Undertakings (Protection of Employment) Regulations 2006
(TUPE) ensure that whenever a business is sold to new owner the contracts of employees working for the seller transfer automatically to that new business. They also protect the existing terms and conditions of transferring employees. The Regulations also require certain key information about employees to be disclosed prior to the transfer. If you are buying or selling a business it is vital that you take advice on your obligations and responsibilities before, during and after the transfer.
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Working time
Since 1998 workers have been protected by the Working Time Regulations. The regulations implemented the EC Working Time Directive and set limits on the amount of time workers can spend at work and specify rest break and holiday entitlements. The sanctions under the regulations are both criminal and civil.
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Directors Service Agreements
Directors have duties, rights and responsibilities under both employment legislation and company law. It is essential therefore that the contract between the company and the director reflects all these considerations.
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