Employment law solicitors

Transcription

1 Employment law solicitors At Millbank solicitors we are dedicated to providing prompt and practical employment advice to both employers and employees. Our expert lawyers appreciate and understand the ever changing nature of employment law. Employees At Millbank Solicitors, we understand that disputes relating to your employment can be stressful. We aim to provide clear and concise advice in order to ensure that you are aware of your rights. We have significant experience representing employees throughout their employment disputes from reviewing contracts of employment, providing initial advice on the merits of a claim, Employment Tribunal representation, negotiating a settlement to advising on the terms of a Compromise Agreement. We are confident that we will be able to understand your concerns and provide clear and timely Employment Law advice. We advice on all areas of Employment Law including: Terms of contracts of employment and service agreements Statutory Grievance and Dismissal & Disciplinary Procedure Discrimination including race, age, sex, disability Harassment and victimisation Maternity and paternity rights Unfair dismissal, redundancy, whistle blowing TUPE Compromise Agreements Employers Our team of lawyers will ensure that you meet your legal obligations to your members of staff. We will provide practical and tailor made advice to suit your business. Our team of employment lawyers will provide advice on how recent changes in the law affect your business and suggest appropriate changes to ensure that you comply with your obligations. We can draft and review policies and handbooks in order to minimise the potential of litigation. Employment law solicitors : FAQ's Do I need a contract of employment? An employer does not have to give an employee a contract of employment.

2 An employer is required, by law, to provide an employee with a written statement of terms and conditions relating to their employments within 2 months of the employee's start date. The written statement is likely to include information that would normally be in a contract of employment. If a dispute arises between the employee and the employer, the Courts are likely to use the statement of terms to determine the terms of employment. What information should my contract of employment contain? Your contract of employment should include the following: Names and addresses of the employee and employer Employment start date Employee's job title and description, place and hours of work Probationary period Salary Holidays Sickness Pension Notice period Restrictive Covenants Grievance and Disciplinary procedure Retirement What is a Dismissal? This is when an employer ends the employment. This can be with or without notice and includes redundancy, when a fixed term contract comes to an end and is not renewed and when an employee ends the contract and the reason is the employer's conduct. Am I entitled to notice before dismissal? This will depend on the terms of your contract or statement of terms. If you have not been provided with this information, you are entitled to the following notice periods: 1 week notice if you have worked continuously for 1 month but less than 2 years, After 2 years' of employment, an additional 1 weeks' notice for each whole year of continuous employment, up to a maximum of 12 years. What is unfair dismissal? Unfair dismissal arises when an employee has been dismissed and the dismissal was not for one of the five permitted reasons. An Employer must be able to show that not only did he have a fair reason to

3 dismiss the employee, but that he also acted fairly in the way in which he handled the dismissal. Am I eligible to claim unfair dismissal? You must have one years' continuous employment, be below the retirement age and not within the excluded category (e.g. the armed forces and police). Continuous employment carries on during sick leave, holidays and Maternity Leave. Have I been dismissed for a fair reason? There are 5 potentially fair reasons for terminating an employee's employment, these are: a) Capability If an employee does not have sufficient qualifications to do the job or if they are deemed to be incompetent, it may be fair to terminate their employment. b) Conduct An employee's conduct may give the employer good reason to dismiss. This would include theft, fighting, abusive behaviour etc. It can include misconduct that took place outside of employment. c) Redundancy It may be fair to terminate an employee's employment, if the employer's business has ceased to operate or has moved to a different place or if the needs of the business have changed. d) Contravention of a statutory provision It is a fair reason to dismiss an employee, if it becomes illegal for the employee to work in the position held or for the employer to employ him in it. For example, where a driver is disqualified by the Court from driving because of a motoring offence. e) Any other substantial reason This is very wide and covers a number of employment related reasons that are not included above. This would include an employee's refusal to accept a reorganisation affecting working hours.

4 Did my employer follow a fair procedure? If your employer did not follow a fair procedure, even if your dismissal was for a potentially fair reason, your dismissal may be unfair. Fair procedure can include: The employer should carry out a reasonable investigation before making a decision; The employer should arrange a disciplinary hearing where the employee is given the opportunity to state their case; The employee should be notified of the hearing and the reasons for the hearing in writing; The employee should be given the right to bring a companion to the hearing; The employer should notify the employee in writing of the termination of employment and the reasons for it. The employee should be notified of the right to appeal against the decision. What type of compensation is available for unfair dismissal? Reinstatement - This is where an Employment Tribunal will place an employee back in their old job and pay compensation for the loss of wages for the time out of the job. Re-engagement- The employee returns to a similar job with the employer. Compensation This is usually awarded when the employee wins their case. Subject to the merits of your claim, compensation for unfair dismissal is made up of a basic award and a compensatory award. The basic award is determined by your age, the length of time you have been in employment (20 years maximum) and weekly pay, limited to a maximum of 330 per week. The compensatory award is intended to compensate an employee for loss of employment, that is, the financial loss resulting from the dismissal including expenses and loss of benefits. It includes loss of wages up to the date of the Employment Tribunal hearing, as well as future losses. The Compensatory award is subject to a maximum of 63,000. When awarding compensation for unfair dismissal, the tribunal will consider whether the employee tried to resolve the dispute by using the employer's appeal procedures before making an application to the tribunal. What is the time limit for brining a claim for Unfair Dismissal?

5 An employee must bring an Unfair Dismissal claim within 3 months of being dismissed. If an employee does not bring a claim in this time, the employee may lose the right to claim. However, before making a claim to an Employment Tribunal, it is necessary for an employee to raise a grievance with the employer. We recommend that you contact one of our solicitors today for more information. We have a range of funding options, including 'No Win No Fee'. What is wrongful dismissal? Wrongful dismissal is essentially a claim for breach of contract. It is where an employees' dismissal was in breach of contract, for example, the employee has been dismissed without notice or where the employee has not given the cor rect amount of notice as required by the contract of employment. An employee may be entitled to sue an employer for Wrongful Dismissal for breach contract. There is no requirement to have been employed for at least one year in order to bring a claim. Is an employee able to bring a claim for both Unfair Dismissal and Wrongful Dismissal? Yes, but there may be an overlap in the compensation awarded. A claim for Wrongful Dismissal can be brought in the Employment Tribunal, County Court or High Court, depending on the value of the claim. What is Constructive Dismissal? This is where the employee leaves their job due to the employer's behaviour. For example, the employer has made the employee's life very difficult and the employee feels that they cannot remain in their job. The employer's actions must have amounted to a fundamental breach of contract. Examples of Constructive Dismissal can include harassing or humiliating staff, victimisation, varying an employee's contract of employment without consent. How much notice do I have to give if I want to resign? You must give the proper notice stated in your contract of employment. If you do not have a contract of employment, you can give a minimum of 1 weeks' notice,

6 depending on the length of your service. An employee may be entitled to resign without giving any notice if the employer commits a serious breach of the employment contract. Can I be dismissed because I am pregnant? An employer cannot dismiss an employee because she is pregnant, if this occurs, the dismissal is automatically unfair. The employee does not have to have 1 year's continuous employment. When will dismissal for pregnancy or for reasons connected to pregnancy be unfair? A dismissal would be automatically unfair when a woman is dismissed for being pregnant or for pregnancy related reasons either during her pregnancy or during maternity leave. What is redundancy? This is where an employee is dismissed if the reason for the dismissal is wholly or mainly attributable to the fact that the employer's business or part of it has ceased to operate and/or the business has moved to a different location and/or the needs of the business for work of a particular type has ceased or diminished. Does an employer need to follow a procedure before making redundancies. Yes, an employer must follow a set dismissal procedure and must use a selection criteria that is fair and non discriminatory. The employer should also consider if you can be offered a different position within the business. An employee is entitled to a written statement explaining why he/she is being considered for redundancy. Ideally, the employee should also have a meeting with the employer to discuss the proposed redundancy. If a fair procedure is not followed, a dismissal may be automatically unfair and the employee may be entitled to compensation. If I am made redundant, am I entitled to redundancy pay? Statutory redundancy pay is determined by the length of your service, your age and your weekly pay. You should also check your contract of employment as it may provide for higher redundancy payment.

7 What is a Compromise Agreement? A Compromise Agreement is a legally recognised and safe way of terminating your employment and finalising a settlement. It reduces the danger of problems arising after the end of the employment. Do you need a Compromise Agreement? The only way an employer can be sure that you will not complain to an Employment Tribunal after the termination of your employment, is for the employee to sign away his/her right to do so. This is done in a Compromise Agreement and has the effect of turning the agreement into a "full and final" settlement of any claims that you may have had in respect of your employment. Should I sign the Compromise Agreement? There is no legal obligation on you to sign a Compromise Agreement. If you do not, you will be entitled to pursue an employment related claim. It is preferable to resolve potential disputes without bringing Employment Tribunal proceedings. We will be able to advice you on the merit of any proposed settlement and whether you should consider Employment Tribunal proceedings. Once a Compromise Agreement has been signed by all parties, it becomes a legally binding Agreement and can be enforced through the courts or Employment Tribunal if necessary. In the majority of cases, our fees are paid in full by the employer. What is disability discrimination? The Disability Discrimination Act provides employment protection to disabled people. An employer's treatment of a disabled person amounts to discrimination if, on the grounds of the disability, he treats the disabled person less favourably than he would treat an employee without that disability. Alternatively, if the employer applies a policy to all employees but the disabled person is disadvantaged by it, this may be disability related discrimination. To prevent discrimination an employer will be expected to make adjustments to the workplace and working conditions, so that a disabled person is not placed at a 'substantial disadvantage'.

8 What is the meaning of 'disability'? A person is disabled if he or she has 'a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities'. What is an employer's duty to make Reasonable Adjustments? The duty to make reasonable adjustments arises where certain arrangements applied by the employer, or any physical feature of premises occupied by the employer, place a disabled person at a substantial disadvantage compared with people who are not disabled. An employer has to take such steps as it is reasonable for it to have to take in all the circumstances to prevent that disadvantage. This may include making adjustments to premises and altering his working hours. What is race discrimination? It is unlawful for an employer to discriminate against an employee on racial grounds, including race, colour, nationality or ethnic or national origins What is sex discrimination? It is unlawful for an employer to discriminate against an employee on the grounds of their sex. The Sex Discrimination Act 1975 applies to both men and women. What is Direct Discrimination? Direct discrimination occurs where an employee or prospective employee is treated less favourably because of their race, sex, marital status, religion, sexual orientation or gender reassignment. What is Indirect Discrimination? This occurs where the effect of certain requirements, conditions or practices imposed by an employer on all employees has an adverse impact on the complainants race, sex, marital status, religion or sexual orientation. Am I eligible to claim discrimination? There is no minimum service requirement to bring a claim based on discrimination. A claim for discrimination can be made regardless of whether the complainant is an employee. Discrimination legislation applies throughout the employment

9 relationship, during the recruitment process, in the workplace and following dismissal. What is the time limit for submitting a claim for discrimination to the Employment Tribunal? A person can make an application to the Employment Tribunal within 3 months of the discrimination. The Tribunal has discretion to decide exactly when the 3 months should start. What type of compensation is available if my claim for discrimination is successful? The Employment Tribunal can make the following orders if Discrimination has taken place: Compensation including damages for injury to feeling. A declaration of the parties rights A recommendation for action What are grievances? Grievances are concerns or complaints that you might raise with your employer. What is the statutory grievance procedure? The procedure has three steps: step one: you inform your employer of your grievance in writing step two: you meet your employer to discuss the grievance step three: your employer holds an appeal, if you request. What is the Statutory Dismissal and Disciplinary Procedure? If an employer is contemplating dismissing or disciplining an employee, the employer must follow the minimum procedure introduced by the Employment Act The 3 step procedure is detailed below: Step 1 The employer must give a written statement to the employee setting out why the employer has decided to take disciplinary action, the employee's alleged misconduct and the reasons for thinking why the employee is guilty. The employer should invite the employee to attend a meeting. step 2 The employer must arrange a meeting with the employee, who has the right to be

10 accompanied by a work colleague or union representative. The meeting must take place at a reasonable time and at a convenient location. At the meeting the employer should state the case against the employee and give the employee an opportunity to respond. After the meeting the employer should notify the employee of their decision and tell the employee that they may appeal against the decision. Step 3 The employee may appeal against the decision and choose to be accompanied at the appeal meeting, which should ideally be heard by a different or more senior manager. The employer should inform the employee of the decision of the appeal. The employee must appeal in order to complete the statutory procedure. What do the Age Discrimination Regulations state? The Employment Equality (Age) Regulations 2006 state that is it is unlawful to discriminate, harass or victimise job applicants, employees or trainees on the grounds of age. When does direct age discrimination occur? Direct discrimination occurs where the employer treats a job applicant / employee / trainee less favourably than he treats or would treat other persons. When does indirect age discrimination occur? Indirect discrimination occurs where the employer applies a provision, criterion or practice which puts persons of a particular age group at a particular disadvantage and they suffer disadvantage as a result.

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