Employment Law

Unfortunately, if an employer finds that they need to close a work place, restructure their business or reduce overheads as a result of a downturn in the economy, they may need to make some of their employees redundant. Making an employee redundant isn’t the same thing as dismissing them for poor performance or a disciplinary matter and can only happen when an employee’s role within a company ceases to exist.

When considering making redundancies within their work force it in important the employers carefully follow set redundancy procedures.

It is the responsibility of the employer to ensure their employees are treated fairly, which ranges from exploring possible alternative employment to ensuring they receive the full redundancy package they are entitled to. Before starting the redundancy process, an employer has to be completely sure there are no alternatives to solve the issue causing the potential redundancy, including changes to their employee’s terms and conditions that, for example, reduce working hours or pay.
The redundancy procedure is a legal requirement for all businesses, and employers need to follow it carefully. This includes:

• being clear on the reasons for redundancy
• outlining how it was determined which roles are at risk
• fair selection
• the criteria used to ‘score’ staff against
• rounds of employee consultation
• written notification and dismissal notices
• the right to appeal

Even if a redundancy situation is genuine, failure to follow the correct procedure can result in a finding of unfair dismissal at an Employment Tribunal. While the right to claim unfair dismissal only arises after two complete years of service, selection for a discriminatory reason can also result in a claim from the beginning of the employment relationship.

If an employee is on maternity, adoption, paternity, or shared parental leave and is part of the redundancy pool, they may have some preferential rights over other employees on any suitable alternative vacancies that are appropriate to their skills.

Our employment law solicitors can provide employers with advice and guidance if they need to consider redundancy to ensure they correctly follow the redundancy process.

If an employee has worked continuously for an employer at least two years, they cannot be dismissed without a fair reason, otherwise the termination of the employment may be viewed as an unfair dismissal. There are five fair reasons for dismissing an employee:

• conduct/misconduct – their behaviour amounts to misconduct, serious or gross misconduct at or outside of work
• capability/performance – their health or abilities makes them incapable or unwilling to do a job to a required standard
• redundancy – their role ceases to exist and there is no alternative employment
• breach of statute – where their continued employment would contravene a statute e.g. if a lorry driver lost their driving licence
• some other substantial reason – this will depend on the facts of each case but an example might be a serious personality clash with another employee.

An employee only has three months from the date their employment was terminated, to claim unfair dismissal.

An employee may bring an unfair dismissal claim against an employer if you have dismissed them without fair reason or did not follow your company’s formal disciplinary process. There are several things to check to see if your employee has grounds for an unfair dismissal case, including the nature of their employment. Generally speaking, an unfair dismissal case can only be brought against an employer if the employee:

• is contractually considered to be an employee (as opposed to a contractor, for example)
• has been an employee for at least two years
• there is a legal reason to consider their dismissal unfair
• It is important to provide your employee with a written reason for their dismissal – legally, you must provide an explanation within two weeks of an employee’s request.

If an employee has resigned from a job because they felt unable to work due to an employer’s or fellow employees’ actions, they may be able to make a claim against their employer for constructive unfair dismissal, as long as they have worked for their employer for least two years.

Constructive dismissal must amount to a fundamental breach of contract, it is not sufficient that the employee feels the employers has acted ‘unreasonably’, which might be one serious incident or a series of incidents when taken together are serious.

Claims for constructive dismissal can arise for a number of reasons, for example, the employee:

• has not been paid
• has been demoted without reason
• the employer has made fundamental changes to your working conditions
• the employee feels unsafe at work
• the employee has been subjected to victimisation, bullying or harassment in the workplace
• the trust and confidence in the employment relationship has fundamentally broken down.
• That being said, the fundamental breach can be a continuing course of conduct which culminates in a “last straw’ and the final incident does not in itself need to be a fundamental breach. Note, if the employee does not leave quickly after the alleged incident(s) their employer may argue that they have accepted the treatment and a constructive dismissal will not have occurred.

If an employee brings either an unfair or constructive dismissal against you, our employment solicitors will be happy to discuss your case with you, explaining the legal complexities and letting you know your options.

An employer’s disciplinary procedure should be in writing and made easily available to all employees e.g. in a staff handbook. Some employers also put their disciplinary procedures in their employee’s employment contracts, which if not followed could result in a claim for breach of contract. Your disciplinary procedure should clearly say what performance and behaviour might lead to disciplinary action and what action you might take as the employer. It should also include the name of someone an employee can speak to if they do not agree with the employer’s disciplinary decision.

If as an employer you decide to discipline an employee you need to follow a prescribed process:

• a letter setting out the issue
• a meeting to discuss the issue
• a disciplinary decision
• a chance to appeal this decision.

As an employer if you do not follow this process that in itself does not give your employee a reason for a claim against you, but if they do take you to an Employment Tribunal and win, it may mean they could get a larger settlement.

By law employers must set out a grievance procedure and share it in writing with all employees, e.g. in a staff handbook. It must include:

who the employee should contact about a grievance

• how to contact this person
• if the problem can’t be resolved informally, there will be a meeting with the employee, called a grievance hearing
• set out time limits for each stage of the grievance process
• identify who to contact if the normal contact person is involved in the grievance
• explain how to appeal a grievance decision
• state that employees can be accompanied in any meetings by a colleague or union representative
• outline what happens if a grievance is raised during disciplinary action

If you are unsure about your disciplinary or grievance procedures or an employee has brought a claim against you, our employment solicitors can advise you on your legal obligations and rights and assist in agreeing a resolution with your employee.