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February 2011 newsletter

March 21st, 2011

Newsletter: February 2011

Our first free seminar dealing with issues of redundancy, lay off and changes to employment contracts took place on 28th  January and was well received.

We are planning to run the seminar again on Friday 8th April at Liverpool Cornerstone (next to our office).

Below are summaries of questions which arose in the seminar and our answers.

   1. Can we change how we pay a member of staff for extra work he undertakes? 

A: If the way in which the staff member is paid is set out in the employment contract, you will need to change the contract. If not, suggest that it will be changed and update the contract. If the employee objects on the basis that it is a binding verbal contract, changing it unilaterally risks the employee resigning and claiming constructive dismissal. However, if they accept the change and continue to work without objecting to the change to the overtime payment, then the contract will have been changed even if nothing is put in writing. It is better to put it in writing as evidence of agreement to new terms and conditions.

  If you don’t want to risk a resignation and constructive dismissal claim, or if existing arrangements are incorporated in a written contract, you will need to meet the employee and explain the changes you propose and the reasons for those proposals. Allow a short consultation period (1 week should suffice) and then meet again. If the employee agrees give him a new contract to sign which takes effect after the required notice period.

 If the employee still refuses to sign, you need to decide whether to give notice and offer a new contract on new terms and conditions. Take advice at this stage, as this risks a potential unfair dismissal, so you will need to discuss with a solicitor whether or not the change can be justified and assess whether the change is important enough to impose on the employee.

  2. What if  an employee who is made redundant claims they were unfairly dismissed becasue they were replace, when in fact the replacment was a freelancer?

 A: A redundancy situation is defined as a reduced need for employees, not that the work does not need to be done. So an employer is entitled to decide to reduce the number of employees of a particular kind and instead use a self employed freelancer(s) to carry out the work. As long as the proposal is put to the employee facing redundancy at a consultation meeting and they are given an opportunity to ask questions, respond, and make alternative suggestions which are then considered before a final decision takes place, the redundancy can still be fair. Before dismissal takes place the employee must be invited to a final meeting at which the decision to dismiss will be taken and offered the opportunity to appeal the decision afterwards.

  3. Is it lawful for an employer to give the option of short time or redundancy? 

A: An employer cannot put an employee on short time unless the contract allows it (expressly or by custom and practice). However, in the course of a redundancy consultation an employee can be offered the alternative of short time. Many employees would agree to this seeing it as the lesser of 2 evils and if the employee agrees, it can be implemented.

  The arrangement should be confirmed in writing, making it clear how long the arrangement is to last. “Short time” is only supposed to be for a short period and the employee can still claim redundancy. However, if the change is intended to be for a longer period, the agreement should say this and may be either a temporary or permanent change to the contract.

 If shorter hours are offered as an alternative to redundancies, then you may need all employees of that type to agree to accept a cut in hours. It is not as easy to impose changes in hours on reluctant employees, as it is to make staff redundant. It is still possible to push through a contractual change of hours even with staff who won’t agree, but proper procedures need to be followed. These include consultation and then terminating contracts on notice and immediately offering new contracts on shorter hours to start when the old ones end.

   4. Is it illegal to take away Bank Holiday pay from employees? If so what is the procedure for doing this? 

A: All employees are entitled to 5.6 weeks holiday per year. There is no right to have particular days off, including bank holidays. If bank holidays are included in compulsory holiday then the employee should be paid their normal pay for weeks which include bank holidays.

  If there are arrangements to pay employees enhanced rates of pay for working on a bank holiday, and the employer wishes to change this to standard pay, then a procedure should be followed as summarised in the second and third paragraphs to the answer to question 1 (above).

 5. In the event of death – is redundancy still payable to an employee? If so who should fund this?

 A: If an employer is an individual and dies then if the business closes as a result, the deceased employer’s estate will be liable for the redundancy payments. If the estate has insufficient funds to pay the redundancy, the employees can apply for payment from the Government redundancy fund. The redundancy fund can then seek reimbursement from the deceased employer’s estate.

 If the business is continued or transferred then TUPE will apply and the new owners will become the employers without there being any termination of employment contracts or redundancies.

  6. What are the issues in relation to making older emploees redundant?

A: Employers should follow the same principles for older people as anyone else. However, an employee can be retired at or above the normal retirement age fairly by an employer provided the right procedure is followed.

 An employer when choosing criteria for redundancy selection should take care in using criteria that could have a discriminatory impact, unless the criteria themselves can be justified. “Last in first out” may discriminate against younger employees but might be justified on the basis of the wish to retain experienced employees or save on redundancy costs. Criteria such as “flexibility” and “future potential” could be operated in such a way as to discriminate against older employees, but may be justified as long as those who carry out the assessments guard against making any assumptions about older employees and if possible use verifiable evidence to justify the assessments of employees. 

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January 2011 Newsletter

January 13th, 2011

10 Resolutions for 2011

Here are 10 suggestions of ways to navigate through any potential difficult HR issues which may arise in 2011.

1.    Identify “pressure points” and be ready to deal with them.
What are your plans for your organisation during the coming year? What will you have to do to get to where you want your organisation to be in January 2012? Will this involve recruitment? Acquiring another business? Redundancies? Relocating staff? Changing peoples jobs or contracts?

Do you have employees with sickness absence problems? Problems with punctuality? Are any employees struggling with new demands being made on them? Are there personality clashes between 2 employees who work together? Do you have someone who is perceived as “difficult” by other employees?

If these problems can be identified and tackled before they cause real problems, you will be better equipped for the future. You will either solve them, or if they are insoluble, you will at least be able to make some progress in removing them.

You don’t need to wait until something serious happens to take legal advice, a chat with your solicitor now will enable you to develop a strategy to deal with problems before they become a crisis.

2.    Have a contingency plan in place to cope with a downturn in business
VAT increase and cuts in public spending will mean some employers will be struggling to maintain their income. A contingency plan will enable you to survive a downturn by cutting your costs quickly if and when necessary. Now is the time to find out how long a redundancy process will take, how much notice you need to give and what it will cost you in terms of redundancy payments. Forward planning and early advice will also reduce the risk of an expensive Employment Tribunal claim.

3.    Introduce or extend systems to objectively monitor employees performance
Do you monitor timekeeping? Absences? Productivity? Do you carry out regular appraisals, and if so do you score your employees under various categories according to their performance?

This will assist in your ongoing management of your employees’ performance and provide you with objective information if you have to make redundancies in the future. The more objective the criteria you use the less chance there is of unfairly dismissing an employee.

4.    Ensure you have an absence management procedure
Properly implemented absence management procedures enable you to tackle problems in this area promptly and identify reasons for absences, which may have to be taken into
consideration if they are linked to an employee’s disability or care responsibilities

5.    Have a plan for “problem” employees
You may be aware of difficulties with certain staff, and the ideal time to think about how to deal with them is before they cause a crisis for your organisation.

If you find out now the HR implications for the steps you plan to take, you will be better prepared to tackle problems effectively and minimise the risk of future problems.

6.    Review your employment contracts
Do your staff have written contracts? Are they up to date? Do they truly reflect the reality of their status?

For employees, it is a legal requirement for them to have certain particulars confirmed in writing and for changes in these particulars to be confirmed in writing.

If any of your staff are not “employees” you may have difficulty in proving their “self employed status” without a written contract.

7.    Try to avoid losing important employees
Monitoring staff satisfaction is no easy task, but being sensitive to issues of conflict, lack of motivation, staff feeling taken for granted etc will help avoid loss of important staff, and the cost of replacing them.

8.    Identify what threats there may be to your business if key employees leave
What if a key member of staff leaves and joins a competitor? Will they be able to make use of sensitive information to help your competitors and harm you? It is possible to prevent or minimise abuse of sensitive information and damaging or unfair competition through incorporating restrictive covenants in their contracts. However, if these are too ambitious they will have no effect.

Properly drafted restrictive covenants for employees who have access to key information or develop good working relationships with your key customers and suppliers could become crucial for preserving your business in the future.

9.    Review your recruitment procedures
An employer can be liable for unlawful discrimination towards a potential employee who fails to obtain a job because of some “protected characteristic.” If your recruitment procedures can show that you select objectively and fairly, you reduce the risk of such a claim being made against you or being successful.

10.    Carry out a “diversity audit”

The extension of the scope of discrimination legislation in the Equality Act 2010 to cover “associative discrimination” and “perceived characteristics” mean that issues involving discrimination are more likely to emerge.

Knowing your workforce will ensure you are sensitive to issues which may arise with implications on management of staff.

For example, do any staff have disabilities which may require adjustments in their working environment or arrangements now or in the future? Do any of them have care responsibilities towards young, elderly or disabled relatives?

A fully developed set of policies and procedures may enable you to avoid liability for an employees unlawful discrimination towards another employee in the future.

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FREE Employment Law Seminar

December 14th, 2010

We have not arranged any seminars in the immediate future.

If you would like to be notified about future Employment Law seminars or if there is a topic that would interest you, please phone 0151 709 5816 and ask to speak to Claire or email her at Claire@lodgelaw.co.uk

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December 2010 Newsletter

December 10th, 2010

Christmas Parties and their consequences!
As the Christmas season approaches many employees look forward to the works “Christmas do.” It is an opportunity for staff to let their hair down, but it comes with the risk that if things get out of hand there can be consequences that impact on the employment relationship.

Consider this letter from a few years ago

Dear Colleague,

I am writing to let you know that because of the disgusting actions of a small minority of those who attended the Pontins’ dance on 31 October. NGSSA have been banned from using the Pontins’ facilities for any future social occasions.

The tally of destruction included:- One double-decker bus taken off the road at 7.30 p.m.  because of its condition due to abuse en route to Pontins; damage to doors, fruit machines and other equipment; several people taken to hospital (2 detained overnight); fighting in the small ballroom; general misbehaviour, use of foul and abusive language (by males and females); drunkenness; abuse, jeering, hurling of missiles etc during the Miss Girobank contest; theft.

All in all we certainly made an impression on the staff at Pontins and on the large number of Police who were called out to restore law and order…the reputation of Girobank employees must be at an all time low.”

Trouble at the Christmas do
Trouble which occurs on a Christmas do can affect the employer’s reputation. A hotel or restaurant is not going to expect the same decorum from an employer who uses the premises for a business meeting, but when there is trouble or damage caused, the employer could face a bill for the damage, be barred from using the venue and suffer damage to its reputation.  The employer is going to want to investigate who was to blame and take appropriate disciplinary action.

Employers are entitled to take action if there is a clear link between the business interests of the employer and the misconduct in question.

Where misconduct has occurred at a Christmas do, the normal requirements to carry out a fair investigation still apply. The employer should investigate properly by interviewing relevant witnesses and preserving CCTV recordings if available. The employee should be informed in writing of the allegations, invited to a disciplinary hearing and if dismissal is being contemplated, should be warned that dismissal is a possible outcome, be given details of the evidence against them, and be invited to a disciplinary hearing and informed of their right to be accompanied by a work colleague or Union representative.

Dismissal is a permissible option if the misconduct was of a serious enough nature to merit dismissal for a first offence (gross misconduct) or if the employee is already on a final written warning.

The Christmas do may have gone well and without any problems, but if the next day is a workday, the employer should consider how he will deal with absenteeism as a result of employees who overdid it the night before!

Where the employer depends on employees turning up to work the next day, a failure to come to work or come to work on time may be grounds for disciplinary action.

It would be unusual to be able to justify dismissal for this, unless the employer has made it clear in advance that attendance at work the day after the Christmas do is so important that failure to attend could lead to dismissal. By doing this, it is far easier for an employer to justify a dismissal, the employee having been given fair advance notice of how seriously the employer will take absence the following day.

When contemplating dismissal employers should always pay close attention to the guidelines contained in the ACAS Code of Practice

A grievance by an employee
The risks of an employee complaining about sexual harassment or violent conduct is heightened in an alcohol fuelled environment. Not only might the employer face the need to investigate a grievance, but might have to deal with resulting sickness absence and possibly even a claim of sex discrimination or constructive dismissal.

Absenteeism the following day
Whether the employee has attended the works Christmas do or another seasonal celebration, an employer with a number of staff off with a day’s absence due to overindulging the previous night may face difficulties which they are anxious to avoid.

Disciplinary Action
Employees may assume that their conduct outside of work hours is nothing to do with their employer, but there are situations in which misconduct out of work can lead to disciplinary action by the employer.

Grievances
Misbehaviour at a Christmas do might prompt a grievance by one employee against another. Unless an employer investigates a grievance properly the employee will start the new year unhappy and if the incident was serious may go off sick or even resign. The employer could then face a possible claim of unfair constructive dismissal. Even though the incident happens outside work, the employer still has an obligation to investigate a grievance if its subject matter impacts on working relationships.

Where the complaint has a discriminatory undercurrent, for example sexual harassment, the employer, may risk facing a discrimination claim in the Employment Tribunal. The employee would have to establish that the discriminatory act occurred “in the course of employment” to make the employer liable. Whilst in many cases employees will have difficulty persuading an employment tribunal that a social event is in the course of employment, some social events can be seen as an extension of their employment, and in one reported case a police officer’s leaving party in a pub was found to be within the course of employment.

If an employee submits a grievance, the ACAS code of practice (see above) provides guidelines of how to investigate a grievance.

On receipt of a grievance, the employer may conclude that a disciplinary investigation should be instituted.

Christmas wishes
So now you’re ready for anything that might happen, here’s hoping that your Christmas celebrations go off without incident and you have a happy and relaxing festive season.

With best wishes from John Halson Solicitors.

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Pregnancy and Maternity discrimination

November 29th, 2010

Definition of unlawful discrimination because of pregnancy and maternity

It is unlawful to treat a pregnant woman unfavourably because of her pregnancy or because of a pregnancy related  illness. It is also unlawful to treat a woman unfavourably because she is on compulsory maternity leave.  In addition, it is also unlawful to treat a woman unfavourably becasue she is exercising, seeking to exercise, has exercised or sought to exercise the right to ordinary or additional maternity leave.

Scope of unlawful discrimination because of pregnancy or maternity

The scope of unlawful discrimination against job applicants and employees includes prohibition of discrimination in offering employment, in the terms of employment, refusing employment, in the way the employer provides access to promotion, transfer, training or receiving any other benefit, subjecting a person to a detriment or dismissing them.

In some circumstances an employer may be able to justify less favourable treatment.

It is also unlawful to victimise someone for complaining about pregnancy or maternity discrimination

Harassment

Harassment is defined as unwanted conduct related to pregnancy or maternity, which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

Enforcing rights

Claims of unlawful discrimination can be brought by job applicants, employees, workers, contractors, and others by issuing a claim in the Employment Tribunal. there is no qualifying period of employment before a claim can be made, but any claim must be registered with the Tribunal within 3 months of the act of discrimination, or where there has been a series of incidents which can be characterised as a single act of discrimination, within 3 months of the latest incident of discrimination.

Before sending a claim to the employment Tribunal the employee must have a certificate from ACAS confirming that conciliation has been attempted. In some circumstances, the time for bringing a claim can be extended as long as the employee has registered for pre claim conciliation with ACAS, using the mandatory ACAS Conciliation procedure within 3 months of the date of the incident complained of, but there are still strict time limits for the employee to submit the claim to the Employment Tribunal once that period of conciliation has come to an end.

Any claim to an Employment Tribunal must include certification from ACAS that conciliation has been attempted and must be accompanied by the Employment Tribunal fee or a valid and fully evidenced application for a fee remission. If any of these are missing, or if the application form has not been correctly completed or if documents or information is missing, the application will not be accepted and it will be returned to the employee.

In some circumstances a Tribunal will allow a claim to proceed even though it is brought later than 3 months from the date of the incident.  A Tribunal will weigh up the interests of the employee and employer to decide whether it is “just and equitable” to allow a late claim to be heard.

Employers are liable for the discriminatory conduct of their employees even if the employer did not know about it at the time. Exceptionally, if an employer has done all it can do to prevent unlawful discrimination, it may be able to avoid liability.

Claims can also be brought against the individuals who caused the discrimination. Employees might choose to do this because they want the individual to be liable for what they did,  if there is a risk that the employer can avoid liability, of if there is a risk of the employer’s business going into liquidation.

Links

Parental and maternity rights page

ACAS guidance

A link to all relevant legislation.

Equality and Human rights Commission

Maternity Action

Working families

Disclaimer

Please note that the information on this page is intended to be a guideline and is therefore a summary of the law only and not a complete guide. Before taking any action based on this information you are strongly advised to take legal advice. Whilst every effort has been made to ensure that the information contained on this page is up to date and accurate, no guarantee can be given to this effect.

Categories: Employment Law Tags:

November 2010 Newsletter

November 24th, 2010

The Equality Act 2010

On 1st October this year the Equality Act 2010 came into force. The Act:-

  1. Consolidates the anti discrimination legislation
  2. Widens the protection against discrimination to cover discrimination on the grounds of “association” and “perception.”
  3. Makes some changes to the law in relation to disability
  4. Introduces rules on pre employment health checks
  5. Introduces a new definition of harassment
  6. Restricts the effect of  “pay secrecy clauses” in employment contracts

The Act refers to 9 “protected characteristics.” It is unlawful to treat an employee less favourably because of a protected characteristic. These are:-

  • Age
  • Disability
  • Gender reassignment
  • Marriage and Civil Partnership
  • Pregnancy and Maternity
  • Race
  • Religion or Belief
  • Sex (including gender reassignment)
  • Sexual orientation

Discrimination is not only unlawful on the basis of an employee’s own “protected characteristic,” but also if it is based on the employee’s association with someone with a protected characteristic or the employer’s perception that the employee has a protected characteristic.

So for example, it would be unlawful to discriminate against an employee on the basis that they are looking after a disabled relative (association), and unlawful to discriminate against someone perceived to be gay, even if that was not the case (perception).

Pre Employment Health Questionnaires

It is now unlawful for employers to ask questions about a job applicant’s health before an offer of employment is made.

This does not prevent a prospective employer

  1. Asking whether any adjustments need to be made to the interview or assessment process because of the applicant’s disability,
  2. Asking whether an applicant will be able to carry out a function which is intrinsic to the role in question.
  3. Asking whether a candidate has a disability if it is to monitor diversity
  4. Where having a particular disability is an occupational requirement

Harassment

Harassment is defined in the Act as unwanted conduct related to a relevant protected characteristic or of a sexual nature, which has

the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

An employer will be liable for “Third Party harassment,” i.e. harassment of an employee by for example a visitor or member of the public, if the employer failed to take such steps as would have been reasonably practicable to prevent the third party from doing so, if the employer knows that person has been harassed in the course of their employment on at least 2 other occasions (not necessarily by the same third party).

Pay Secrecy clauses and Equal Pay

Any provision in an employment contract, which prevents disclosure of a pay differential, is unenforceable if the disclosure is made for the purpose of finding out whether a pay difference is connected to a particular characteristic

Changes to Disability Discrimination

The definition of disability has been simplified to cover someone who has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Whereas previous case law meant that a person who complained of discrimination because of their disability had to compare themselves with a non disabled employee in the same situation, that is no longer required. It is unlawful to discriminate against a person for a reason which arises from their disability.

For example a disabled employee who is dismissed for having been off sick, does not have to show that a non disabled employee who has a similar sickness record would have been treated differently. It is enough for the employee to show the treatment was for a reason connected to their disability, to establish that the discrimination may be unlawful if the employer cannot justify it.

To defend a claim of disability discrimination an employer must show that the treatment complained of was “a proportionate means of achieving a legitimate aim.”

It is now possible to “indirectly discriminate” against a disabled person.

Points for action

We can help you with any of the following suggestions for further action

  • Revise and update your Equal Opportunities Policy
  • Review any questions you ask about a job candidate’s health as part of your recruitment procedure
  • Pay careful attention to any complaints your staff might raise about treatment they receive from customers, or other members of the public they encounter in the course of their employment, and take action to deal with any problems to avoid a potential claim for “third party harassment” by one of your staff.
  • The widening scope for discrimination claims underlines the importance of following correct procedures when taking any action (including disciplinary and dismissal) in relation to a member of staff. Even when dealing with employees with under a year’s employment, following correct procedures will help you demonstrate the real reason for your action to defend against any unwarranted accusation of unlawful discrimination
  • When dealing with any problems with staff in relation to lateness or attendance issues, or any problems between staff, ensure you are alert to any potential “discrimination” issues which might be connected to staff’s family or friends as well as the individuals themselves.
  • Consider introducing comprehensive Diversity Policies and procedures, with  training for staff to ensure you do everything you can reasonably be expected to do to prevent unlawful discrimination. This provides a defence to a claim that the employer should be liable for the discriminatory act of one of its employees.
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Bus numbers in Liverpool to Halson Solicitors

March 7th, 2010

Bus Links

Map of Arriva routes

Buses to and from Liverpool City Centre

76 route from Liverpool City Centre to Halewood goes along Lodge lane

75 (Halewood) and 80 (Speke) go along Croxteth Road/Ullet Road (5-10 minutes walk from the office)

86 (Garston) go along Upper parliament street/Smithdown Road (5-10 minutes walk from the office)

Circular routes

The 26 bus (clockwise) (Click here for timetable) and 27 bus (anticlockwise) (Click here for timetable) go along Lodge Lane

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Whistleblowers

January 19th, 2010

The law gives protection to employees or workers who make “protected disclosures” (sometimes known as “whistleblowers”).

The definition of “worker” is specially extended in whistleblowing cases and can cover people who work through an agency, their own company or an “umbrella” company. This is confirmed in a recent case.

This makes it unlawful to victimise or dismiss someone by reason of the fact that they have made a protected disclosure.

A protected disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—

(a)     that a criminal offence has been committed, is being committed or is likely to be committed,
(b)     that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject
(c)     that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d)     that the health or safety of any individual has been, is being or is likely to be endangered,
(e)     that the environment has been, is being or is likely to be damaged, or
(f)     that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.

To be protected the disclosure must be made in good faith to either the employer or the person or organisation who is accused of being in the wrong.

Alternatively if an employee believes the information comes within the responsibility of any of a number of specified bodies, a disclosure to one of those bodies will count as a protected disclosure. They are listed in the Schedule to the Public Interest Disclosure (Prescribed Persons) Amendment Order.

Sometimes a disclosure will be protected if made to someone other than the employer or one of the prescribed bodies.

In order to qualify for protection it must have been reasonable to have made the disclosure and it must be the worker’s reasonable belief that if he made it to the employer he would be subjected to a detriment, that evidence will be concealed, or that he has already disclosed it to the employer.

Protection of workers who make a protected disclosure

A worker has the right not to be subjected to a detriment in their work if they make a protected disclosure.

An employee who is dismissed for making a protected disclosure is regarded as unfairly dismissed.

Enforcing Rights

There is no minimum qualifying period of employment required for an employee to bring a claim in the Employment Tribunal, in respect of either of these potential claims, but the claim must be received by the Tribunal within 3 months of the dismissal or detriment, or within the extended period provided for through the compulsory ACAS conciliation procedure which requires anyone bringing a claim to register for pre claim conciliation first.

Before sending a claim to the Employment Tribunal the employee must have a certificate from ACAS confirming that conciliation has been attempted. In some circumstances, the time for bringing a claim can be extended as long as the employee has registered for pre claim conciliation with ACAS, using the mandatory ACAS conciliation procedure within 3 months of the date of the incident complained of, but there are still strict time limits for the employee to submit the claim to the Employment Tribunal once that period of conciliation has come to an end.

Any claim to an Employment Tribunal must include certification from ACAS that conciliation has been attempted and must be accompanied by the Employment Tribunal fee or a valid and fully evidenced application for a fee remission. If any of these are missing, or if the application form has not been correctly completed or if documents or information is missing, the application will not be accepted and it will be returned to the employee.

Links

ACAS guidance

Disclaimer

Please note that the information on this page is intended to be a guideline and is therefore a summary of the law only and not a complete guide. Before taking any action based on this information you are strongly advised to take legal advice. Whilst every effort has been made to ensure that the information contained on this page is up to date and accurate, no guarantee can be given to this effect.

Categories: Employment Law Tags:

Working time Regulations

January 19th, 2010

What limits are there on working time?

The working Time Regualtions provide the following:-

· Right to breaks during working hours
· A maximum number of hours in a working week
· A maximum number of hours for night workers
· Minimum breaks between shifts
· Minimum weekly breaks
· Right to paid holiday (see separate holidays)

Breaks during a shift

Workers are entitled to a 20 minute break after 6 hours work.

A young worker (Age 16 – 18) is entitled to a 30 minute break after 4.5 hours of work.

Minimum Daily and weekly Breaks

A worker is entitled to a minimum of 11 hours break between shifts (12 hours for a young worker, age 16 – 18)

A worker is entitled to a minimum of 24 hours break once a week or 48 hours one a fortnight (2 days for a young worker, age 16 – 18)
Further details in relation to rest breaks

Different regulations apply to workers in air, sea or road transport

Road Transport

Air Transport

Sea Transport

Maximum working hours

An employee cannot be required to work an average of more than 48 hours per week unless they have previously opted out in writing.

To calculate whether a worker has exceeded the limit, an average is taken over 17 weeks.

After a worker has signed an agreement to opt out of the 48-hour limit, they can opt back in, but the employer is entitled to require up to 3 months notice that an employee wants to cancel the opt out, by stating this in the original opt out agreement. If no notice period is given in the opt out agreement, the employee only needs to give 1 week’ notice.

A young worker (Age 16 – 18) cannot be required to work more than 8 hours in any one day, nor more than 40 hours in any one week. No opt out is available in respect of young workers.

More details on the 48-hour maximum working week

Young Workers

More details on the rights of young workers

Night Workers

Workers who regularly work at nigh (between 10 p.m. and 6 a.m.) cannot be required to work more than an average of 8 hours in any 24 hour period.

If their work is involves special hazards or heavy physical or mental strain then they cannot be required to work more than 8 hours in any 24 hour period

Night workers are also entitle to free health assessments.

Further details for nightworkers

Sunday working

Further details

ACAS guide

Holiday rights

Workers have the right to a minimum of 5.6 weeks paid holiday. Bank Holidays can form part of the 5.6 weeks.

Further details see “Holiday Rights.” 

How the Working Time Regulations can be enforced

Employers are obliged to keep records of working time for each employee.
The Health & Safety Executive, Local Authorities and various transport authorities have the power to take enforcement action, make inspections, serve notices on employers and prosecute offences under the Working Time Regulations.

However, in the vast majority of cases, workers enforce their rights by starting a claim in the Employment Tribunal. A Tribunal can award compensation to employees where employers breach the regulations. Any claim must be brought within 3 months of the most recent breach in the Working Time Regulations.

In some cases an employee may be able to claim that a breach of the Regulations entitles them to resign and claim unfair “constructive” dismissal. See Constructive Dismissal

Protection of workers who assert their rights

A worker has the right not to be subjected to a detriment in their work if they refuse to work in breach of the regulations, refuse to give up a right under the regulations or bring a claim asserting that the employer is in breach of the Regulations.

An employee who is dismissed for asserting their rights in this way or bringing a claim is regarded as unfairly dismissed.

Enforcing rights

There is no minimum qualifying period of employment required for an employee to bring a claim in the Employment Tribunal, in respect of either of these potential claims, but the claim must be received by the Tribunal within 3 months of the dismissal or detriment.

Before sending a claim to the Employment Tribunal the employee must have a certificate from ACAS confirming that conciliation has been attempted. In some circumstances, the time for bringing a claim can be extended as long as the employee has registered for pre claim conciliation with ACAS, using the mandatory ACAS Conciliation procedure within 3 months of the date of the incident complained of, but there are still strict time limits for the employee to submit the claim to the Employment Tribunal once that period of conciliation has come to an end.

Any claim to an Employment Tribunal must include certification from ACAS that conciliation has been attempted and must be accompanied by the Employment Tribunal fee or a valid and fully evidenced application for a fee remission. If any of these are missing, or if the application from has not been correctly completed or if documents or information is missing, the application will not be accepted and it will be returned to the employee.

Links

ACAS Guidance

Disclaimer

Please note that the information on this page is intended to be a guideline and is therefore a summary of the law only and not a complete guide. Before taking any action based on this information you are strongly advised to take legal advice. Whilst every effort has been made to ensure that the information contained on this page is up to date and accurate, no guarantee can be given to this effect.

Categories: Employment Law Tags:

Unfair Dismissal

January 19th, 2010

Introduction to unfair dismissal

Claims for Unfair Dismissal are brought in the Employment Tribunal.

If an Employment Tribunal decides an employer has acted unfairly it will normally make a finding of unfair dismissal and an order for compensation and has the power to order the employee to be reinstated.

If an employee resigns in circumstances where they are justified in doing so because of the employer’s conduct, this is know as “constructive dismissal.” Most constructive dismissals are also unfair dismissals.

Who is protected against unfair dismissal?

The protection against being unfairly dismissed only covers employees, it does not apply to people who work on a self employed basis even though they might be classed as “workers” and have certain rights under the Employment rights Act 1996.

Employees also must have 2 years continuous employment before they are protected from being unfairly dismissed. When calculating the period of employment, the minimum period of notice of 1 week is added, so anyone who is dismissed with immediate effect, actually qualifies after 1 year and 51 weeks!

Unfair Dismissal: Potenitally fair reasons for dismissal

If an employer wishes to avoid a finding of unfair dismissal, it must first of all have a potentially fair reason to dismiss. The law states that the following are potentially fair reasons:

1. misconduct;
2. redundancy;
3. capability (this includes either sickness absence or ability to do the job);
4. qualifications;
5. if the continued employment of the employee would be unlawful.

There is also a residual category called “Some other substantial reason” which can apply to a limited number of situations which do not fit into these categories. This includes retirement where the employer has an objectively justified contractual retirement age.

Retirement

Retirement is no longer a potentially fair reason for dismissal. In some limited circumstances an employer who has a contractual retirement age may be able to justify requiring am employee to retire at that age.

Retirement

Unfair Dismissal: acting reasonably

It is unusual for findings of unfair dismissal to be based on the employer failing to rely on a potentially fair reason for dismissal. However, an employer must also ensure that they acted reasonbly in relying on the fair reason to dismiss. Otherwise, despite having a fair reason for dismissal the result will be an unfair dismissal.

Most findings of unfair dismissal arise from the employer going wrong in the way they go about the dismissal. There are different steps expected of an employer depending on the reason chosen, and it is the failure to follow the correct steps which normally renders a dismissal unfair

Click the link below to see what is expected in the most common categories relied on when defending claims of unfair dismissal:

Misconduct Redundancy Capability(sickness) Capability (Other)

ACAS Code of Practice

In the case of Misconduct or Capability an employer is expected to follow the ACAS code of Practice

Remedies for unfair dismissal

If an employee succeeds in winning a claim of unfair dismissal they are entitled to a basic award (similar to a redundancy payment) if they have not already received a redundancy payment. See ready reckoner, although note that an employee with only one year’s continuous employment is entitled to a basic award if they win a claim of unfair dismissal, even though if they had been made redundant they would not have qualified for a redundancy payment.

An employee who has been unfairly dismissed by reason of redundancy will not get a basic award if they have already been paid the correct redundancy payment.

They are also entitled to compensation in respect of their financial losses which usually comprises their loss of earnings, but can include other losses and expenses.

Employment Tribunals will normally make a nominal award for “loss of statutory rights.” This is based on the loss of right to claim unfair dismissal and loss of right to a redundancy payment in the first 2 years of their next job.

Reinstatement of an unfairly dismissed employee

An Employment Tribunal  can also order reinstatement of an unfairly dismissed employee but this is discretionary and even if an employee asks for reinstatement will not necessarily be ordered, even though the Employment Tribunal has found that the employee was unfairly dismissed. If an employee is not reinstated and is still suffering ongoing loss of earnings, an award for future losses can be made.

Maximum and average awards for unfair dismissal

The most an Employment Tribunal has the power to award for an employee’s losses for unfair dismissal is 1 year’s salary subject to a maximum of  £76,574. In practice most unfair dismissal awards are considerably lower.  In 2012 – 2013 the median average award in unfair dismissal claims was £4,832.

Possible reasons for reducing an unfair dismissal compensation award

A compensatory award in an unfair dismissal case may be less than the employee’s actual losses for any of the following reasons:-

  • If the employee has not made sufficient effort to find new employment following their unfair dismissal
  • If the employee had not been unfairly dismissed, their employment would have come to an end at a date earlier than the hearing date anyway even if the employer had acted fairly
  • In an unfair dismissal for  misconduct case the employee has been partly or wholly to blame for their own dismissal (The employer can be found to have unfairly dismissed an employee even when the employee is to blame!)
  • If the employee has already been given a severance payment in excess of their entitlement, any extra can be deducted from the unfair dismissal award.

How to bring a claim of Unfair Dismissal

Claims of unfair dismissal are brought in the Employment Tribunal.

There are strict time limits on bringing a claim. The claim must be received by the Employment Tribunal within 3 months of the date of dismissal even where the employee has appealed against the dismissal. The employee does not have to wait for the appeal to be concluded before bringing a claim. The time for bringing a claim can be extended as long as the employee has registered for pre claim conciliation with ACAS, using the compulsory ACAS conciliation procedure. The Employee will not miss the deadline as long as they have registered with the ACAS conciliation procedure within 3 months of the date of dismissal, but there are still strict time limits for the employee to submit the case to the Employment Tribunal once that period of conciliation has come to an end.

An application to an Employment Tribunal must be accompanied by the Employment Tribunal fee or a valid and fully evidenced application for a fee remission, If any of these are missing, or if the application form has not been correctly completed or if documents or information is missing the application will not be accepted and it will be returned to the employee.


Links relating to Unfair Dismissal

ACAS guidance

Disclaimer

Please note that the information on this page is intended to be a guideline and is therefore a summary of the law only and not a complete guide. Before taking any action based on this information you are strongly advised to take legal advice. Whilst every effort has been made to ensure that the information contained on this page is up to date and accurate, no guarantee can be given to this effect.

Categories: Employment Law Tags: