Rights at work – John Halson

 Unfair Dismissal: Misconduct

In considering whether a dismissal for misconduct was fair an employment Tribunal must consider both the disciplinary offence and the way in which the employer went about deciding to dismiss.

The Offence

In principle an employee should not be dismissed for a first disciplinary offence unless they have previously been warned. It would be unusual for a Tribunal to find it fair to dismiss for an act of misconduct if the employee was not already on a “final written warning.”

The exception to the need for a warning is if the employee had committed an act of “gross misconduct.” This means that an employer is justified in dismissing even if the employee has not had a disciplinary warning before. It also means the employer does not need to give the employee notice of termination.

Gross misconduct is misconduct which objectively considered is capable of destroying the trust and confidence in the employee. It covers obvious serious misconduct such as dishonesty or violence, but in less obvious cases, as long as an employer can show:

1. That the employer can justify taking it so seriously, and
2. That the employee should have been aware how serious it was;

Then the employer is entitled to treat it as an act of gross misconduct.

Normally an employer can show that an employee should have known how serious it was if the employee has been given a contract, procedure or written notice (before the misconduct occurred) stating that the employer considers misconduct of that type to be gross misconduct.

The way in which the employer goes about dismissing

If an employer considers the misconduct serious enough to justify dismissal, either because it is such a serious matter, or because the employee is subject to a final written warning, there still needs to be an investigation by the employer. The investigation should include:-

1. Interviewing any relevant witnesses (and making a written record of what each one says)

2. Considering any relevant documents

3. Inviting the employee to a disciplinary hearing and letting the employee know in advance:-

3.1 The specific allegation

3.2 That the decision could result in dismissal

3.3 The evidence against the employee (copies of statements and documents in 1 & 2 can be provided)

3.4 The employee’s right to bring a Union rep or work colleague to the meeting

4. If the employee is found to have committed gross misconduct, consideration of any mitigating factors, the employee’s work record and whether there is any other penalty appropriate (e.g. a final written warning)

5. Informing the employee of the right to appeal.

The employer must also make sure that the process is conducted as fairly as possible. This means the employee should be given a fair hearing. So if possible, the person who hears the disciplinary hearing should not be a witness to the misconduct itself, and the person who carries out the appeal should not have been previously involved in the disciplinary process. The person who investigates the offence before the disciplinary should ideally not be either a witness to the misconduct nor the same person who carries out either the disciplinary or the appeal.

The extent to which the employer can comply with these standards depends on its size and administrative resources, and just because an employer does not comply with every requirement does not automatically mean the dismissal is unfair. If an employer falls short of these standards it is up to a Tribunal to assess whether the extent of the employers shortfall is serious enough to render the dismissal unfair.

Tips for finding a solicitor to deal with an unfair dismissal claim

Specialist legal knowledge and experience is a good start, but to “get the edge” it is useful to find a solicitor with experience of representing clients at Employment Tribunals, particularly at the Employment Tribunal where your case is likely to be heard. This is because familiarity with the way a Tribunal is likely to assess particular cases and particular circumstances helps effective advice and preparation right from the start.

Most of our experience here at John Halson solicitors is based in representing clients at the Liverpool Employment Tribunal which covers claims arising from people who have worked in north and central Cheshire including Chester, Warrington, Northwich, Middlewich, Winsford, Tarporley, Ellesmere Port, Great Sutton; and Merseyside including Liverpool, Birkenhead and the Wirral,  Widnes, Runcorn, St Helens, Kirkby, Maghull, Skelmersdale, Ormskirk, Southport, and Formby.

We also regularly appear in the Manchester Employment Tribunal and occasionally in the Leeds, Birmingham and Shrewsbury Tribunals.

Links: Unfair Dismissal – Misconduct

ACAS guidance

ACAS Code of Practice

Free Employer’s seminar

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.

What is the minimum wage?

Workers are entitled to be paid a minimum hourly rate of pay dependant on their age.

The rate is revised from 1st October each year.

Current rates (01.10.10 – 30.09.11) are:-

· Age 21 +         £5.93 per hour (£6.08 from 01.10.11)
· Age 18 – 20    £4.92 per hour (£4.98 from 01.10.11)
· Age  16 – 17     £3.64 per hour (£3.68 from 01.10.11)

The minimum wage does not apply to the following:

· Those who are truly self employed
· Workers under 16
· Apprentices age under 19 or in the first year of their apprenticeship

Specific Circumstances

Workers who are “on call” are in most cases likely to be entitled to the minimum wage during this time.

Workers on piece rates are entitled to be paid the minimum wage for every hour they work unless the employer has calculated a fair piece rate and provided specific details of that fair piece rate to the employee in writing.

Employees who also receive tips are still entitled to the national minimum wage in addition to any income from tips.

Employees who are provided with accommodation can have the notional value of the accommodation included when calculating the minimum wage. The maximum figures from 1st October 2010 are £4.61 per day/£32.27 per week.

How the National Minimum Wage can be enforced

Employers are obliged to keep records of hours and pay for each employee. Employees are entitled to inspect and take copies of their records although the employer may require up to 14 days written notice to produce these records.

A worker can report the employer to HM Customs & Revenue who can then take enforcement action.

A worker can bring a claim to an Employment Tribunal not only for payment of any shortfall in the minimum wage but also for any other financial losses caused by the failure to pay the minimum wage (e.g. bank charges). However any claim must be brought within 3 months of the latest shortfall in pay.

If the most recent failure of an employer to pay the minimum wage is over 3 months ago, a worker can still bring a claim in the County Court.

Protection of workers who seek to enforce the minimum wage

A worker has the right not to be subjected to a detriment in their work if they take action or propose to take action to enforce the minimum wage or if they are subjected to a detriment in order to avoid having to pay them the minimum wage.

An employee who is dismissed for taking action or proposing to take action to enforce the minimum wage or to avoid having to pay them the minimum wage, 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.

Further information

Information on benefits in kind

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.

This page provides information on employees’ rights in the following:-

• Rights at work while pregnant
• Maternity Leave
• Statutory Maternity Pay
• Adoption Leave
• Statutory Adoption pay
• Paternity Leave
• Rights on returning to work
• Flexible work application
• Parental Leave
• Time off for dependants
• Protection of employees who exercise their rights
• Protection against unfair dismissal

Rights at work while pregnant

A pregnant employee is entitled to paid time off for antenatal classes

Employers have a duty to carry out a risk assessment to assess the risks to the health and safety of a new or expectant mother or that of her baby.

If the assessment reveals a risk the employer must consider preventative action, if this does not eliminate the risk vary the woman’s work to avoid the risk and if this is not possible, offer suitable alternative work and if that is not possible put her on paid suspension

Maternity Leave

A pregnant employee is entitled to
· up to 52 weeks statutory maternity leave
· Statutory Maternity Pay for up to 39 weeks (if they qualify)
· Maternity Allowance from the government if they don’t qualify

She must give notice of the expected date of birth and her intended date to start maternity leave, at least 15 weeks before the week the baby is due. Normally this is a prescribed form MAT B1 which the employee obtains from the midwife.

The employer must then give notice within 28 days stating the date her maternity leave will end.

The employee can choose to start maternity leave at any time up to 11 weeks before the expected date of birth.

An  employee will have to start her maternity leave early if she is off work with pregnancy related illness during the last 4 weeks before the expected date of birth, unless the employer agrees otherwise.

The employer and employee can agree for her to work for up to 10 days during her maternity leave (“Keeping in Touch” days) without brining her maternity leave to an end.

Statutory Maternity Pay (SMP)

An employee who has been employed for 41 weeks or more by the expected week of birth on more than the National Insurance Lower Earnings Limit (£107 per week) qualifies for SMP, at 90% of earnings for the first 6 weeks and then £135.45 per week for the remaining 33 weeks.

Maternity Allowance is £135.45 per week.

There is an online tool to enable an employee to calculate their entitlement.

Adoption Leave

An employee who adopts a child has the right to
·  up to 52 weeks statutory adoption leave
· Statutory Adoption Pay for up to 39 weeks (if they qualify)

An ACAS guide is available.
 

Statutory Adoption Pay (SAP)

An employee who has been employed for 26 weeks or more by the week in which she was notified of being matched with a child for adoption on more than the National Insurance Lower Earnings Limit (£107 per week) qualifies for SAP, at 90% of earnings for the first 6 weeks and then £135.45 per week for the remaining 33 weeks.

Paternity leave

The father of the child or partner of someone taking maternity leave or adoption leave is entitled to up to 2 weeks paternity leave and is entitled to Statutory Paternity Pay of £135.45 per week during this period, provided they have been employed for 41 weeks or more by the expected week of birth or (in the case of adoption) 26 weeks or more by the week in which the child’s adopter was notified of being matched with a child for adoption on more than the National Insurance Lower Earnings Limit (£107 per week) qualifies for SAP, at 90% of earnings. Government guidance.

Rights on returning to work

An employee who returns after maternity leave or adoption leave has the right to return to the same job on the same terms and conditions that would apply if she had not been off.

If it is not practicable for an employee to return to the same job because a redundancy situation has arisen, the employee is entitled to be offered any suitable alternative vacancy on terms and conditions which are not substantially less favourable to her.
 

Flexible work application

An employee with child care responsibilities (or with responsibilities for an adult relative who requires care), can make a formal application for a variation of their contract to enable them to care for the child or relative, by completing a prescribed form and following a set procedure. Click here for further information.

ACAS guidance.

Parental Leave

An employee who has been continuously employed for at lest 1 year with responsibility for a child under the age of 5 can apply for parental leave of up to 13 weeks for any one child (18 weeks if the child is in receipt of Disability Living Allowance).

They can take a maximum of 4 weeks in any one year.
They must give at least 21 days notice of the requested dates of parental leave before the start of any period of parental leave.
There is no right for an employee to be paid during parental leave.

Time off for Dependants

An employee is entitled to take a reasonable amount of time off during working hours in order to take action which is necessary:
(a)To provide assistance on an occasion when a dependant falls ill, gives birth or is inured or assaulted
(b) to make arrangements for the provision of care for a dependant who is ill or injured
(c) in consequence of the death of a dependent
(d) because of the unexpected disruption or termination of arrangements for the care of a dependant, or
(e) to deal with an incident involving a child of the employee which occurs unexpectedly in a period during which an educational establishment is responsible for the child

This right is intended to cover absences of relatively short duration to cover unforeseen circumstances when there is no time to arrange to book parental leave

Detailed government guidance is available.

Protection of employees who exercise these rights

Discrimination against a woman because she is pregnant is sex discrimination 

An employee has the right not to be subjected to a detriment as a result of an act done which relates to pregnancy; childbirth or maternity; maternity, adoption, paternal or parental leave; or taking time off to care for dependants, or an application for flexible working.

A claim can be brought to an Employment Tribunal by an employee who has been subjected to a detriment.

Protection against unfair dismissal

Employees dismissed for a number of reasons connected with family rights are regarded as automatically unfairly dismissed and an employee can bring a claim for unfair dismissal in these circumstances even if they have been employed for less than a year.

These reasons are ones connected to pregnancy; childbirth or maternity; maternity, adoption, paternal or parental leave; or taking time off to care for dependants; or an application for flexible working.

A woman who is dismissed while pregnant may not be unfairly dismissed if the reason for the dismissal was a potentially fair one, provided she was not treated any differently in the process adopted than if she had not been pregnant.

She also has the right to written reasons for her dismissal.

In a redundancy situation she has the right to be offered any suitable alternative vacancy on terms and conditions which are not substantially less favourable to her.

Claims of unfair dismissal can be brought to an Employment Tribunal.

Links

ACAS guidance

Employee guide to pregnancy and maternity rights at work
Employer guide to pregnancy and maternity rights at work

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.

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.

How dismissal for a genuine redundancy can be done fairly

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.

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 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 90 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.
 

Determining if a redundancy is also an 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.

Tips for finding a solicitor to deal with an unfair dismissal claim

Specialist legal knowledge and experience is a good start, but to “get the edge” it is useful to find a solicitor with experience of representing clients at Employment Tribunals, particularly at the Employment Tribunal where your case is likely to be heard. This is because familiarity with the way a Tribunal is likely to assess particular cases and particular circumstances helps effective advice and preparation right from the start.

Most of our experience here at John Halson solicitors is based in representing clients at the Liverpool Employment Tribunal which covers claims arising from people who have worked in north and central Cheshire including Chester, Warrington, Northwich, Middlewich, Winsford, Tarporley, Ellesmere Port, Great Sutton; and Merseyside including Liverpool, Birkenhead and the Wirral,  Widnes, Runcorn, St Helens, Kirkby, Maghull, Skelmersdale, Ormskirk, Southport, and Formby.

We also regularly appear in the Manchester Employment Tribunal and occasionally in the Leeds, Birmingham and Shrewsbury Tribunals.

Links

ACAS guidelines and publications on redundancy.

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.

Who is entitled to this?

The right to a minimum period of paid holiday is available both to employees and “workers” who are not employees in the strict sense of the word.

A worker is someone who works personally for someone who is more like a boss than a client or customer of a business. Many self employed individuals are totally dependent on one person or company who provides them with work full time, this is typical in the construction industry. Often they will have the status of “worker.”

Agency staff may be employees of the agency or, more commonly will have the status of “worker.”
 

How much paid holiday are they entitled to?

Employees and workers are entitled to 5.6 weeks paid holiday per year. This includes “bank holidays.” Employees who work 5 days per week Monday to Friday, will normally have bank holidays off which is equivalent to 1.6 weeks so in addition they have 4 weeks holiday.

Employees who work more than 5 days per week, however, are only entitled to 28 days holiday.
 

When must the holiday be taken?

An employer is entitled to require all holiday to be taken within the “holiday year.” The holiday year is usually specified by the employer (often the calendar year). If this is impossible because the employee has been off sick or the employer refuses a holiday request, it may be carried forward.

If no holiday year is specified by the employer then it runs from the date the employment started (or 1st October 1998 if employment began before this date).
 

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.

Discrimination on the grounds of gender reassignment

Definition of transgender discrimination

It is unlawful to treat a person less favourably because he or she intends to undergo, is undergoing, or has undergone gender reassignment. because it is perceived that he or she intends to undergo, is undergoing, or has undergone gender reassignment. or because they associate with someone who  intends to undergo, is undergoing, or has undergone gender reassignment.(direct discrimination).

It is also unlawful to impose a provision, criterion or practice which puts persons intending to undergo, undergoing, or who have undergone gender reassignment at a disadvantage when compared to others (Indirect discrimination).

Scope of unlawful transgender 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.

 
Harassment on the grounds of gender reassignment 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 gender reassignment.

Absences relating to gender reassignment

The Equality Act 2010 also makes it unlwful to treat a transexual who is absent from work because of gender reassignment less faviourably than someone who is absent from work because of sickness or injury or than someone who is absent for some other reason and it is not reasonable to treat them less favourably.
 

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.

There is a provision for a potential Claimant to obtain information in relation to a potential claim of discrimination by sending a questionnaire to the employer.

 
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.

Tips for finding a solicitor to deal with a claim of discrimination

Specialist legal knowledge and experience is a good start, but to “get the edge” it is useful to find a solicitor with experience of representing clients at Employment Tribunals, particularly at the Employment Tribunal where your case is likely to be heard. This is because familiarity with the way a Tribunal is likely to assess particular cases and particular circumstances helps effective advice and preparation right from the start.

Most of our experience here at John Halson solicitors is based in representing clients at the Liverpool Employment Tribunal which covers claims arising from people who have worked in north and central Cheshire including Chester, Warrington, Northwich, Middlewich, Winsford, Tarporley, Ellesmere Port, Great Sutton, Frodsham; and Merseyside including Liverpool, Birkenhead and the Wirral,  Widnes, Runcorn, St Helens, Kirkby, Maghull, Skelmersdale, Ormskirk, Southport, and Formby.

We also regularly appear in the Manchester Employment Tribunal and occasionally in the Leeds, Birmingham and Shrewsbury Tribunals.

Links

ACAS 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.

An employee with child care responsibilities (or with responsibilities for an adult relative who requires care), can make a formal application for a variation of their contract to enable them to care for the child or relative, by completing a prescribed form and following a set procedure.

An employee must have worked for their employer for 26 weeks and must not have made another application to work flexibly in the last 12 months.

The request can specify hours, days, place of work including working from home) and shift patterns requested.

There is a specific form which can be used:

On receipt of an appplication for flexible working, the employer must arrange a meeting to discuss the application within 28 days. The employee may bring a work colleague with them for the meeting.

The employer then has a further 14 days to make a decision in relation to the application.
The employer is entitled to refuse the application on a number of grounds:-
· Burden of additional costs.
· Detrimental effect on ability to meet customer demand.
· Inability to reorganise work among existing staff.
· Inability to recruit additional staff.
· Detrimental impact on quality.
· Detrimental impact on performance.
· Insufficiency of work during the periods the employee proposes to work.
· Planned structural changes.

If the employee is not happy with the employer’s response they have the right to appeal against this decision. The appeal should be in writing and should state the reason they think the employer’s decision was wrong.

The employer must arrange an appeal meeting within 14 days and the employee is entitled to bring a work colleague to the meeting.

The employer must make a decision in relation to the appeal within 14 days of the appeal meeting.

 
Links

ACAS guidance

Government 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.

Definition and Scope

The Equal Pay Act provides that women should be paid the same as men if they do the same job or do a job rated as equivalent or of equivalent value. It also provides that other terms of employment should be the same.

It does so by implying an “equality clause” into employees’ contracts of employment so that any employer who pays a woman less than a man in similar employment is deemed to be in breach of this implied term of the contract.

Broadly speaking a woman has the right to the same terms of employment as a man if:-

1. They do the same job or a job which is broadly similar
2. Their jobs are rated as equivalent by a job evaluation study
3. Their job is of equal value in terms of the demands made (for instance under such headings as effort, skill and decision),

An employer can justify a difference in pay if the difference is genuinely due to a material factor other than the difference in gender, or that if it does directly or indirectly discriminate against women that it can be objectively justified.
 

Enforcing rights

Equal pay covers both employees and women working under a contract personally to execute any work or labour.

Employees who wish to bring claims of Equal Pay can issue 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 either during the employment under the unequal contract or within 6 months of the employment under that contract coming to an end.

Where a claimant wishes to claim more than 6 months after the employment coming to an end it is also possible to bring a claim in the County Court within 6 years of that employment coming to an end.

An Employment Tribunal which upholds a claim of Equal Pay can declare what the pay and/or other terms of the contract should be to be lawful and can award the difference between what the employee was paid and what she should have been paid for a period going back up to 6 years from when the claim was started.

There is a provision for a potential Claimant to obtain information in relation to a potential claim for Equal Pay by sending a questionnaire to the employer.

In a claim for work of equal value an Employment Tribunal may decide itself on the evidence presented whether the work is of equal value or it may order a report from a member of the panel of independent experts to determine whether the work in the 2 jobs being compared is of equal value.
 

Links

Equality and Human rights Commission Leaflet

More information from the Equality & Human Rights Commission

Government guidance
 

Links specifically for employers

EHRC Equal Pay Toolkit for employers
ACAS Guidance on pay systems

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.

Non-employment contracts

Not everyone who apparently works for an employer is an employee in the legal sense.

Other contracts include:-

· Agency Staff
· Self-employed contractors
· Self-Employed workers

Some people who are paid as if they were self employed might be deemed to be employees if in all other respects they are treated as employees. In other words the label “self employed” will be a meaningless label if the true nature of the basis under which they work is that of an employee.

People who work under either of the above arrangements might be classed as “workers,” this gives them some rights that employees have (e.g. the right to paid holiday leave, minimum wage, breaks and maximum working hours).

A worker is someone who works personally for someone who is more like a boss than a client or customer of a business. Many self employed individuals are totally dependent on one person or company who provides them with work full time, this is typical in the construction industry. Often they will have the status of “worker.”

Agency staff may be employees of the agency or, more commonly will have the status of “worker.”

Only employees have the right to minimum set notice periods, redundancy payments and the right not to be unfairly dismissed.

Employees, workers, agency staff and self employed contractors all have the right not to be unlawfully discriminated against.

ACAS guidance for agency workers

Employment Contracts

A contract is an agreement supported by some payment. It is not the same as a written document. Many employment contracts are recorded in writing but anyone who works as an employee has an “employment contract” even if it is only verbal.

Written contracts

An employer should provide an employee with written terms of employment after 2 months, these must cover the matters listed in section 1 of the Employment Rights Act 1996. If they don’t an employee can apply to an Employment Tribunal for an order requiring the employer to provide these or declaring what the terms of the contract are.

Terms incorporated by law

The law provides certain terms must be implied into a contract of employment whatever it says, so for example the law requires minimum notice periods for employers to give to employees, a minimum wage, paid holidays and maximum working hours.

Changing the contract

An employment contract can only be changed by agreement. An employer cannot impose changes on the employee against the employee’s will. However, if the employee continues working without protest to new terms and conditions, they will be taken to have accepted them by their actions.

An employer who insists on changes against the employee’s will risks the employee resigning and claiming constructive dismissal.

An employer who wishes to impose changes against an employee’s will must given lawful notice to terminate the employment and offer a new contract on new terms and conditions, this may or may not still be an unfair dismissal depending on the precise circumstances.

TUPE transfers

If an employee has joined the employer as a result of a transfer of undertakings, then they have the right to have their existing terms and conditions preserved. Any detrimental change to their terms and conditions which has been made by reason of the transfer will be void. This means even if they agree to the changes, if the changes are found to be due to the transfer they will be deemed not to take effect.

There is nothing preventing a transferred employee’s terms and conditions changing, as long as the change is not by reason of the transfer. However, harmonising terms and conditions of employees may in many cases be deemed to be by reason of the transfer, even if this takes palce some time after the transfer.

Click here for more information.

Restrictive Covenants

There are some terms of an employment contract which continue to operate after employment has come to an end.

There is an implied term of confidentiality in all contracts of employment which means that employees cannot take confidential information about the employer’s business with them after their employment comes to an end.

There can also be specific written terms of the contract which restrict what work an employee can do after the employment comes to an end. These are known as “restrictive covenants.” Usually they specify a period of time and often a geographic restriction on an employee setting up or working for a competing business, or poaching employees to come and work with them.

If an employee breaches a restrictive covenant or the implied duty of confidentiality, an employer can take an injunction out against them and claim compensation for loss of profits, and their legal costs.

However, if the Court finds that the restrictions go further than is necessary to protect the employer’s interests then the whole restriction becomes void. This could be disastrous for an employer who will be unable to prevent the old employee competing, and find that any other employees who leave may feel they can safely ignore the restrictions.

For this reason it is important that advice and careful thought is given when putting restrictive covenants into a contract to make sure they have the desired effect, without going too far.

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.

Discrimination

Scope of the law prohibiting discrimination

As set out in the Equality Act 2010, it is unlawful to discriminate against employees because of one or more of the following “protected characteristics”

1. Race
2. Sex

3. Marriage and Civil Partnerhsip

4. Gender Reassignment (Transgender)

5. Disability
6. Age
7. Religion or Belief
8. Sexual orientation

9. Pregnancy & 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.

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

The scope of anti discrimination legislation covers not only employees and workers but much wider areas including contractors and those providing services.

Types of discrimination

It is unlawful to directly discriminate against a person by treating them less favourably because of a protected characteristic.

It is also unlawful to indirectly discriminate against a person by imposing a provision, criterion or practice which puts persons of a particular group at a disadvantage compared to others.  An example of this might be requiring a vacancy only to be filled by a full time worker, if it can be shown that this puts women at a disadvantage, because, for example, women with young children are less likely to be able to comply with it than men.

Disability discrimination also incorporates the concept of a “reasonable adjustment” which requires employers to consider adjustments to remove disadvantages to a disabled worker’s working conditions.

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

The law prohibiting unlawful discrimination also provides for claims of unlawful  harassment. Harassment is defined as unwanted conduct related to a relevant protected characteristic, 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.

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.

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

Government advice on discrimination law

Equality and Human Rights Commission

The Equality Act 2010

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.