Rights at work – John Halson

Transfer of Undertakings

The purpose of the Transfer of Undertakings (Protection of Employment) Regulations are to protect the employment rights of employees when the place they work is taken over.

The transfer can take place as a result of a sale of a business or a “service provision change” which includes outsourcing a service, bringing an outsourced service “in house” or when there is a change in the contractor carrying out a particular contract.

It does not include a takeover of a company by new majority shareholders because the company remains the employer.

The Effects of a transfer

Anyone who buys a business or tenders for a contract must ensure they are fully advised of the effects of TUPE because it’s effect in many cases will result in them taking on the existing workforce on their existing terms and conditions.

It is not only the employees who transfer but also all liabilities which means that if there is any claim which an employee may have against the previous employer, after the transfer the employee can make the claim against the new employer.

In certain circumstances the new employer can claim from the old employer, but where a business is sold it is wise for the new employer to seek indemnities from the old employer.

Duties of the former employer

Before the transfer takes place the former employer has a duty to provide information about the employees to the new employer.

The former employer also has a duty to consult with employees representatives about the transfer. If this is not done, the employees may be able to claim compensation of up to 13 weeks pay from the new employer.

There is no obligation on an employee to agree to be transferred but if this happens then the employee’s employment is deemed to come to an end when the transfer takes place, but the employee does not normally have any right to claim either unfair dismissal nor a redundancy payment.

Dismissal

If an employee is dismissed by reason of the transfer then the dismissal is automatically unfair.

If an employee is dismissed due to a reason connected with a transfer the dismissal can only be fair if it is for an “economic, technical or organisational reason requiring changes in the workforce.” This might be the case where the new employer does not require as large a workforce. However, it will be up to the new employer to make redundancies and carry out the redundancy consultation and selection process fairly. See “Making a redundancy dismissal fair.”

Terms and conditions

For employees who do transfer, their terms and conditions must be preserved. Even if the employee signs to say they agree to a change in terms and conditions, any detrimental changes to their terms and conditions are void. There is no time limit on how much time must pass before changes can be made, if the changes are because of the transfer, they are void no matter how much time has gone by since the transfer took place.

Terms and conditions can be changed as a result of a transfer if the reason for the change is for an “economic, technical or organisational reason requiring changes in the workforce.” A change in the workforce usually requires a reduction in employees so this is not an exception which is widely available to employers.

Links

The regulations

Government guide to the regulations

Government guide on disclosure of employee information

ACAS guide on handling TUPE transfers

ACAS flowchart

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.

Legal Effect of sickness absence

An employee who is absent due to sickness remains an employee until either they resign or the employer dismisses them.

Their sickness absence does not affect their entitlement to holiday pay.

They are not required to work, but do have a duty to remain contactable by the employer and to keep the employer informed.

Notification

An employer is entitled to require the employee to notify them by a particular time if they are going to be off sick.

An employer is entitled to ask for a self certification form if the employee’s sickness lasts more than 3 days and for a doctor’s note if it lasts more than 1 week.

Sick pay

If an employee’s contract does not provide for them to be paid whilst off sick then they are entitled to Statutory Sick Pay from the 4th day of sickness absence for a period of up to 28 weeks (after which they need to claim Incapacity Benefit).

An employer is entitled to seek information from an employee about their sickness and require them to attend meetings (if the employee is well enough to attend a meeting).

Disability and Reasonable Adjustments

If an employee has a disability, the employer should consider whether there are any “reasonable adjustments” which can be made which would enable the employee to return to work. In appropriate cases these might include allowing the employee to work from home or temporarily altering the working hours or allowing a “phased return” to work. For further information see Disability Discrimination

Dismissing an employee who is off sick

An employee who is off sick can still be dismissed and that dismissal will be fair provided the employer has a fair reason and acts reasonably by following the correct procedure.  See  “Unfair Dismissal” and in particular dismissal on the grounds of “Capability.”

To dismiss fairly it is normally necessary for an employee to be invited to a meeting. This should still be done, but in many cases the employee will be unable to attend a meeting. The employer should consider alternatives such as:-
1. Postponing the meeting if the employee is likely to be well enough to attend a meeting in the near future.
2. Arranging a home visit to meet at the employee’s home (this would normally be presented as an option to the employee)
3. Allowing the employee to send someone on their behalf to attend the meeting
4. Conducting the meeting by way of a telephone call.

Dismissing an employee because of sickness

An employee who is off sick for a prolonged period of time can be fairly dismissed if they are unlikely to be well enough to return to work within a reasonable time.

What amounts to a reasonable time depends on the nature of the job, the specific difficulties encountered by the employer in covering for the absence and the size and administrative resources of the employer.

However, even where an employer is easily able to cover the absent employee’s work and even where it costs the employer nothing to keep the job open, an employer is not expected to have to keep the job open indefinitely.

See “Dismissal on the Grounds of Capability.”

Where the employer has caused the employee’s sickness

In some cases, the employee’s sickness absence may have been caused by the employer, for example due to an industrial accident or industrial disease. This does not mean that the employer cannot fairly dismiss, although if the employee is claiming damages for the injury in a Court case they will also be able to claim their loss of employment if they are dismissed.

In cases where the sickness absence is caused by the employee’s treatment at work, the employer will be expected to investigate this and seek to resolve this before considering dismissal.

Frequent short term sickness absences

An employee who has frequent short term absences can be dismissed fairly even if no one absence would be long enough to justify dismissal on its own. Before an employer can dismiss for this reason the employee needs to be told what level of sickness absence is not acceptable and given the opportunity to improve their sickness absence levels.

The employer should investigate whether or not the employee has a disability. If so, then it might be a “reasonable adjustment” for the employer to discount any sickness absences which are related to that disability. For further information see Disability Discrimination.

Some employers have a sickness absence management procedure which states the level of sickness absences which can be tolerated and provides a series of warnings to operate if the rate of sickness absence does not improve. The final stage is dismissal. This has the advantage to both parties of making it clear the levels of sickness absence which can be tolerated and the consequences of sickness exceeding those levels.

Links

ACAS guide

ACAS guide for employers

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.

Definition of unlawful discrimination because of sexual orientation

It is unlawful to treat a person less favourably because of their sexual orientation, their perceived sexual orientation or because they associate with someone of a particular sexual orientation (direct discrimination) and unlawful to impose a provision, criterion or practice which puts persons of a different sexual orientation at a disadvantage when compared to others (Indirect discrimination).

Scope of unlawful discrimination because of sexual orientation

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.
Sexual orientation related harassment is also unlawful. Harassment is defined as unwanted conduct which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading humiliating or offensive environment.

It is also unlawful to victimise someone for complaining about sexual orientation discrimination.

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 indicent 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, or if there is a risk of the employer’s business going into liquidation.

Links

ACAS Guide

Government guidance

Equality and Human rights Commission

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.

Definition of sex discrimination

It is unlawful to treat a person less favourably on the grounds of their gender, their perceived gender or their association with an individual of a particular gender (direct discrimination). It is also unlawful to impose a provision, criterion or practice which puts persons of a different gender at a disadvantage when compared to others (Indirect discrimination).

Scope of unlawful sex discrimination

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 sex discrimination.

Common types of sex discrimination

Pregnancy related treatment

It is unlawful sex discrimination to discriminate against a woman for a pregnancy related reason. This might be connected with pregnancy, pregnancy related sickness, attending antenatal classes, maternity leave, or a miscarriage or termination. There is also special provision for pregnancy and maternity discrimination within the Equality Act 2010.

For more information see pregancy or maternity discrimination and  Maternity & Parental Rights

Sexual harassment

Sexual harassment is also unlawful. Sexual Harassment is defined as unwanted conduct related to a person’s sex 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.

Refusal to allow flexible working

This is an example of indirect discrimination. Requiring an employee to work certain hours constitutes a requirement which may put a woman at a disadvantage if, for example, child care responsibilities make this difficult to comply with.

However, if an employer can justify the requirement, it will not amount to unlawful indirect discrimination.

For more information on applying for flexible working see flexible working rights

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 they 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, or if there is a risk of the employer’s business going into liquidation.

Links

ACAS guidelines and publications

Government guide

Equality and Human rights Commission

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.

Dismissal by reason of retirement is no longer a potentially fair reason for dismissal . An employer with a contractual retirement age who can justify it would have to rely on the residual category of “some other substantial reason” if they are going to justify a retirement dismissal.

To justify a contractual retirement age an employer must be able to show that having a blanket retirement age which applies to all staff is a proprtionate means of ahieveing a legitimate aim.  In most circumstances this is llikely to be difficult for employers to justify, when employees’ ability continue to to do their job can be assessed individually rather than applying a set retirement age.

Links

ACAS Guidance on dismissal for retirement.

The Employment Equality (Repeal of Retirement AgeProvisions) Regulations 2011

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.

Discrimination on the grounds of religion or belief

Definition of discrimination because of religion or belief

It is unlawful to treat a person less favourably because of their actual or perceived religion, religious belief, or similar philosophical belief or because they associate with someone with a particular  religion, religious belief, or similar philosophical belief (direct discrimination).

It is also unlawful to impose a provision, criterion or practice which puts persons of a different religious or philosophical belief at a disadvantage when compared to others (Indirect discrimination).

Scope of unlawful discrimination because of religion or belief

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

It is also unlawful to victimise someone for complaining about discrimination on the grounds of religion or belief.

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 form 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 they 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, or if there is a risk of the employer’s business going into liquidation.

Links

ACAS guide and publications

Government guidance

Equality and Human rights Commission

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.

Definition of Redundancy

Redundancy is when an employer has a reduced requirement for employees of a particular kind at a particular place of work.

An employer does not have to show that there is a decrease in work or even a need to save money; redundancy is often the result of reduced work, but can also be a result of reorganisation, outsourcing work, or closure of a site.

What makes redundancy unique among the potentially fair reasons for dismissal is that it is the “job” that is being dispensed with, rather than the employee personally.

Employers may decide not to make redundancies where there is a reduction in work which they anticipate is only temporary and they don’t want to lose their employees. They may then lay off employees or put them on short time.

Definition of a Lay Off

A lay off is where an employer does not provide the employee with work, but does not terminate their employment.

Definition of Short Time

An employer may temporarily cut the employee’s hours, maintaining the same rate of pay per hour, but reducing the employee’s pay because of a reduction in hours.

Payments to employees who are made redundant

Employees who are made redundant are entitled to notice (or pay in lieu of notice) and a redundancy payment calculated according to their gross weekly pay, age and length of service. See calculator or ready reckoner.

An employee must have been employed for 2 years to qualify for a redundancy payment, although they are still entitled to claim unfair dismissal after 1 year, so even though an employee who is made redundant may not qualify for a redundancy payment, if the process followed is unfair they can still make a claim of unfair dismissal to an Employment Tribunal.

The notice period of needs to be included when calculating the qualifying period.

Rights of an employee in relation to lay offs and short time

The Right to lay off

An employer does not always have the right to make lay offs or put employees on short time. This can only be done if either:-

1. The Employment contract allows for this (or does not guarantee a set number of hours work)
2. Lay offs and short time are accepted as “custom and practice.”
3. The employer makes and agreement with the employees (employees may agree to this or even suggest it as a way of avoiding redundancies)

If an employer lays off employees or puts them on short time without the right to do so the employees can claim full pay for each day of the lay off as “unlawful deductions from wages.” An employee might also be able to resign and claim “constructive unfair dismissal.”

Guarantee Payment and Job Seekers Allowance

During the first 5 days of lay off the employee is entitled to a “Guarantee payment.” This is £25.00 per day.

More detail about rights to a guarantee payment.

If the employee is still off work after 5 days lay off they can claim Job Seekers Allowance from Job Centre Plus, without having to resign.

Procedures for lay offs

Where an employer chooses to lay off some employees there is no particular requirement to consult or use any fair selection process, although an employee who is unfairly singled out for a lay off or short time may be able to resign and claim unfair constructive dismissal.

Claiming Redundancy

An employee who is on short time or laid off can also claim redundancy in certain circumstances. They must first have been laid off or on short time for either 4 continuous weeks or 6 weeks in any 13 week period. They must then write to the employer claiming a redundancy payment, and after giving the employer an opportunity to respond, may then in some circumstances be able to resign on notice and claim a redundancy payment. The procedures and timing have to be strictly observed so this should only be done after taking advice or checking the requirements carefully. Further details.

ACAS Guidance

What needs to be done to make a redundancy fair?

In all redundancies a fair process means there must be a consultation period before a final decision is taken. An employee is entitled to notice from when the final decision is taken. The amount of notice an employee is entitled to is either what is written in their contract or one week for every year of their employment (up to 12 weeks), whichever is the longer.

The following steps must be followed by an employer to make a redundancy dismissal fair:-

1. Considering pool for selection
2. Warning
3. Consultation
4. Fair selection process
5. Offering vacancies
6. Appeal

1. Pool for Selection

An employer must first of all decide on a “pool” for selection. This means selecting a group of employees with reference to their jobs out of which the redundancies are to be made. There is no right or wrong answer to how wide the pool should be drawn as long as determining who should be included in the pool is by reference to the job or place of work, not the individual characteristics of the employees.

If there is a unique role that is being made redundant it would be valid to have a pool of one.

2. Warning

An employer has a duty to warn all employees who are likely to be affected as soon as a decision is made to propose redundancies. This unusually marks the beginning of the “consultation period.”

If an employer proposes to make 20 or more employees redundant from one site either at the same time or over a 3 month period, special consultation procedures are required.

3. Consultation

The consultation period is a period of time during which all employees affected are entitled to have an input into the employer’s proposals. The employer is required to provide sufficient information for the consultation to be meaningful and consider any suggestions made by the employees.

The subject matter of the consultation can include:-

(a) Ways of avoiding compulsory redundancies
(b) The employer’s proposed method and process of selection
(c) Alternative employment/process for filling existing vacancies

Consultation is more than providing information, but does not necessarily amount to “negotiation” in the sense that the final decision following consultation is down to the employer so long as the employer has considered suggestions made by the employees and has reasons for the final decisions.

There is no set minimum time for the consultation period (30 days or 45 days only applies where there are 20 or more redundancies). However it would be difficult for an employer to justify a consultation period of much less than a week, especially if a selection exercise is to be undertaken.

4. Selection process

If the number of redundancies to be made is smaller than the number of employees in the pool for selection, a fair method of selection must be used.

A fair method of selection is one which is objective. An employer who simply chooses the employees to be kept on subjective grounds acts unfairly.  The criteria used may be very simple (e.g. “last in first out”), or can involve a number of criteria and a scoring system. If a scoring system is used, the use of some categories which involve a degree of subjective assessment, may be valid as long as when looked as a whole the process is objective. In determining whether a process has been fair, a Tribunal must consider both the categories used and the process by which employees are assessed to see whether it is a genuinely objective way of selecting employees or whether it is just a cloak to mask the employer’s subjective selection.

Whether the criteria are all objective or partly subjective, the process of assessment must be objective and employees must therefore be given the opportunity to comment on their assessment before a final decision is made. This means they must be able to know how they scored in each category of the assessment. An employee is entitled to see their own assessment but not those of other employees.

5. Vacancies

An employer must offer redundant employees any suitable vacancies. There is a statutory 4 week trail period available so if there is doubt about an employee’s suitability for the job or if the employee doubts the suitability of the job for them, the employee can try the job as long as within 4 weeks a decision is made either by employer or employee that it is not suitable.

Although the employer has an active duty to notify potentially redundant employees of suitable vacancies, in some circumstances, particularly with large organisations or large scale redundancies, it is fair to provide employees with a list of vacancies and invite them to apply for them.

Where there are more potentially redundant employees than there are vacancies, the employer must use a fair process in selecting the employees who are to be offered the vacant positions. The same criteria apply as for redundancy selection. Reorganisations in which “everyone has to apply for their jobs” is effectively the same as a redundancy selection procedure with a wide pool for selection.

There is nothing wrong with incorporating an interview as part of the selection process as long as the process as a whole is objective. If employers attempt to use it as a “back door” method of choosing subjectively the individuals they wish to retain, redundant employees may be able to claim they were unfairly dismissed.

If employees are faced with redundancies, then any vacancies any of them are interested in must be “ringfenced” so that candidates who are not facing loss of their employment and outside candidates cannot be offered the vacancy unless no redundant employees wish to apply for the vacancy or no redundant employee is suitable to fill the vacancy.

6. Appeal

Finally, the employer should allow an employee selected for redundancy the right to appeal against the decision to dismiss them from redundancy. The appeal should be carried out by someone who has not been involved in the process up to that point as is sufficiently senior to overrule the original decision.

Reorganisation

Sometimes an organisation will restructure and a complete role or roles will become redundant. Before making any employees redundant, the employer will devise a system to select for the vacancies in the new organisational structure. If there are as many new roles as old roles then there may not need to be any redundancies.  However, in most cases there are fewer new roles and/or some or all of the new roles are on less favourable terms and conditions.

In many cases employers will select for the new roles through tests and/or interviews. Roles in the new organisational structure should be ring fenced so that only those faced with possible redundancy can apply unless there are roles which no one is qualified to do, or there are not enough people to fill the new roles.

However, an employer does not have to be as objective when selecting for the roles in the new structure as they would have to be when selecting for redundancy. For that reason, selection through interview alone might be held to be fair. A degree of fairness is required, however and it would be open to a Tribunal to hold that a redundancy was unfair if the method of selection for the new roles were found to be too subjective. If an employee successfully  alleges that the new roles weren’t “new” at all but that they were being “interviewed for their own job” then a Tribunal would expect selection for the new roles to be as objective as selection for redundancy.

Determining if a redundancy is also an unfair dismissal

An employer who fails significantly to follow these established guidelines could face a claim for unfair dismissal.

Failure to follow all these points does not automatically render a dismissal for redundancy unfair, it all depends on the seriousness of the employer’s shortcomings and the size and administrative resources of the employer.

It is not a defence to a claim for unfair dismissal for redundancy to say that following all the procedures would have made no difference. However, if this is the conclusion of an employment Tribunal it will limit the award of compensation to the difference between what the employee would have received if the employer had acted fairly and what the employee in fact received, which in some cases could be very modest, or even zero.

Failure to pay a Redundancy Payment or Notice

If an employer fails to pay a redundancy payment or fails to either give the required notice of termination of employer or pay the employee in lieu of notice, the employee can bring a claim to an Employment Tribunal.

A failure to pay notice pay amounts to a breach of contract and unlawful deduction from wages. Claims for unpaid notice can either bebrought in an employment Tribunal or in the County Court. the time limit for claiming in the Employment Tribunal is 3 months. In the County Court it is 6 years.

An employee can claim a redundancy payment from an employer by starting a claim in the Employment Tribunal. The time limit for claiming a redundancy payment is 6 months. this cannot be claimed in the County Court.

The Government insolvency service will pay a redundancy payment if the empoyer becomes insolvent (and sometimes even if the employer is not insolvent if the employer is unable to pay).

Payments are also available for up to 8 weeks pay (subject to a maximum weekly amount) for unpaid wages, unpaid notice pay or unpaid holiday pay if the employer becomes insolvent.

Before bringing a claim to an Employment Tribunal an employee must have a certificate form 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 the time limits (6 months or 3 months depending on the type of claim) from 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.

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 is missing, or if the application form has not been correctly completed or if documents of information is missing, the application will not be accepted and it will be returned to the employee.

A claim to the County Court does not require the employee to use ACAS conciliation. there is still a fee, but the Court fee may be lower than the Employment Tribunal fee.

Links

Government guidance on redundancy

ACAS guidelines and publications on redundancy are available.
ACAS guidelines on lay offs and short time are available.

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.

Definition of race discrimination

It is unlawful to treat a person less favourably on the grounds of their race, their perceived rce or because they associate with someone of a particular race (direct discrimination) and unlawful to impose a provision, criterion or practice which puts persons of a different  race, colour, nationality, or ethnic or national origin at a disadvantage when compared to others (Indirect discrimination).

Scope of unlawful race discrimination

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.

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

It is also unlawful to victimise someone for complaining about race discrimination.

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 brining 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 form 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, or if there is a risk of the employer’s business going into liquidation.

Links

ACAS

Government guidance

Equality and Human rights Commission

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.

The Rights

Part Time workers have the right to be treated no less favourably than comparable full-timers. This means they should receive the same rates of pay, have the same opportunities for training, and be entitled to the same benefits and opportunities as full time employees.
These Rights are set out in the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

Right to Request reasons

A part time employee who believes they have been treated less favourably than a full time employee is entitled to request in writing reasons for the less favourable treatment. The employer must then provide written reasons within 21 days.

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

Claims to Employment Tribunals

A worker who has been treated less favourably by their employer on the basis of their part time status can make acclaim to an Employment Tribunal.
There is no minimum qualifying period of employment required for a worker to bring a claim in the Employment Tribunal, for breach of these regulations but the claim must be received by the Tribunal within 3 months of the dismissal or detriment.

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 give up a right under the Regulations or complain 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, making a complaint or bringing a claim is regarded as unfairly dismissed.

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.

Links

The Regulations

Detailed Government Guidance.
ACAS guidance and publications

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.

If there is a written contract it will normally specify the notice required by an employer or employee to terminate an employment contract.

However, the law specifies certain minimum notice periods, which apply whether or not there is a written contract. These will override the contract if the minimum period of notice is longer than that stated in the contract, but not if the written contract gives a longer notice period.

Notice by Employer

During the first 4 weeks of employment there is no minimum period of notice required.

After 4 weeks but before 2 years employment an employee is entitled to 1 week’s notice.

From 2 years to 12 years the employee is entitled to 1 week for every complete year of continuous employment.

After 12 years employment the employee is entitled to 12 weeks notice.

Exceptions

There are no minimum notice period for a worker or self employed contractor who is not an employee.

If an employee has committed an act of “gross misconduct” their employment can be terminated without notice.

An employee whose written contract states the employer may terminate their employment and pay them in lieu of notice, can be dismissed immediately as long as they are paid what they would have earned if they worked their notice period.

Pitfalls for the employer

If an employer does not follow correct procedures then even where the correct notice period has been given, the dismissal is likely to be found to be “unfair” (see Unfair Dismissal)

Where an employer decides the employee committed an act of gross misconduct, if the employee brings a claim, a Court of Tribunal is entitled to make up its own mind as to whether the employee committed an act of gross misconduct.

If an employer terminates the contract of someone he regards as self employed,  if the worker claims to be an employee, a Tribunal can decide that in reality they were an employee and should have been given notice.

If an employer dismisses an employee with insufficient notice, the employee may be able to avoid the obligations set out as “restrictive covenants” imposed under a contract.

For further information see “Employment Contracts.”

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.