Employment

Our Employment lawyers offer advice and assistance to companies, employers, managers and HR professionals on all areas of employment law and at all stages of the cycle, from recruitment to post-employment references.

We offer practical and cost-effective guidance and will clearly explain what your legal options are when recruiting, managing, disciplining and possibly dismissing your employees. We have been helping both employers and employees with employment law issues for many years and our experience in dealing with both sides of an employment problem means we have extensive knowledge and understanding of what is required to achieve the best outcome should an employment dispute arise.

Alexis Lane
Partner & Head of Business Services
Direct Dial: 01491570909
Settlement Agreements

A Settlement Agreement (previously known as a Compromise Agreement) is a voluntary legally-binding written contract, where an employer and employee terminate employment on agreed terms.

Employers may wish to offer a Settlement Agreement to employees they are making redundant or to avoid going to an Employment Tribunal, as it is a much quicker and simpler procedure. Should you need to terminate an employee’s employment, using a Settle Agreement enables you to offer an employee a sum of money to facilitate a swifter termination of their employment, and help protect your business against future claims as the employee will be unable to make a claim about any type of claim which is listed in the agreement, such as unfair dismissal.

In essence, it financially compensates the employee whilst limiting the employer’s liability so that a line is drawn under the end of the employment relationship with a “clean break” being achieved. Because of this, the law states that employees should seek independent legal advice to have any Settlement Agreement offered to them reviewed and, if appropriate, negotiating the terms. This legal advice is normally paid for by the employer in terms of a financial contribution.

How we can help
We can help you draft a Settlement Agreement in light of the background to the termination and can negotiate on your behalf where necessary. For more information please contact Alexis Lane in our Employment Department.

A Settlement Agreement financially compensates an employee, whilst limiting the employer’s liability, so that a line is drawn under the end of the employment relationship

Redundancy

Unfortunately, employers may find that they need to close a work place, restructure their business or reduce overheads as a result of a downturn in the economy. If that is the case, they may need to make some of their employees redundant and to do so they need to carefully follow set redundancy procedures.

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. It is the responsibility of the employer to make 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.

Redundancy Process
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.

There are some situations where an employer may wish to offer a Settlement Agreement– a voluntary legally binding contract that can be used to end an employment relationship on agreed terms between the employer and the employee. A much quicker procedure that the formal redundancy route, Settlement Agreements also ensure that if an employee is dismissed, they will be unable to make an employment tribunal claim about any type of claim which is listed in the agreement such as unfair dismissal.

Redundancy for employees on maternity, adoption or paternity leave
If an employee is on maternity, adoption, paternity, or shared parental 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.

How we can help
We can provide you with advice and guidance if you need to consider redundancy to ensure you correctly follow the redundancy process. For more information please contact Alexis Lane in our Employment Department.

Even if a redundancy situation is genuine, failure to follow the correct procedure can result in a finding of unfair dismissal

Unfair Dismissal & Constructive Dismissal

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:

  1. conduct/misconduct – their behaviour amounts to misconduct, serious or gross misconduct at or outside of work
  2. capability/performance – their health or abilities makes them incapable or unwilling to do a job to a required standard
  3. redundancy – their role ceases to exist and there is no alternative employment
  4. breach of statute – where their continued employment would contravene a statute e.g. if a lorry driver lost their driving licence
  5. 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.

Unfair Dismissal
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 you 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.

Constructive Dismissal
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 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.

How we can help
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. For more information please contact Alexis Lane in our Employment Department.

There are five fair reasons for dismissing an employee

Dismissals & Disciplinaries

If you need to discipline an employee for performance, conduct or absence issues you need to ensure that the correct processes are followed in order to remain compliant with your legal obligations. If you do not follow the proper process a dismissal that might otherwise be fair could be considered unfair, or even if a fair process is followed, a dismissal might be judged too harsh or being inconsistent with the way others have been treated for the same offence.

Disciplinary Procedure
Your disciplinary procedure should be in writing and made easily available to all staff 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 an employer might take. 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 you 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.

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.

Grievance Procedure
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

How we can help
If you are unsure about your disciplinary or grievance procedures or an employee has brought a claim against you, we can advise you on your legal obligations and rights, and assist in agreeing a resolution with your employee. For more information please contact Alexis Lane in our Employment Department.

Employers must set out their disciplinary and grievance procedures in writing and share them with all employees

Contracts

If an employer asks to change an employee’s contractual terms and conditions, they need to be clear from the outset why they are seeking to make the changes and show evidence they can be justified. Changing an employment contract is not a simple procedure and has a number of serious legal implications if an employer does not do it correctly.

Contract Changes
An employer may wish to alter an employee’s existing contractual terms and conditions, due to a business reorganisation or economic reason, for example, the financial impact of the Coronavirus pandemic. Changes an employer may wish to make to the terms and conditions of a contract can include pay cuts, changing hours or place of work, job duties and entitlement to certain benefits.

Contractual terms in an employment contract cannot be changed without an employee’s agreement, unless this is permitted by the contract itself with a variation clause. Even if such a clause exists, it may not be effective unless carefully worded and a fair procedure followed – any ambiguity will likely be construed in the employees’ favour as Courts and Employment Tribunals often view such clauses as undermining trust and confidence considerations.

If no agreement can be reached, an employer can terminate an employee’s existing contract and offer continued employment on new terms. However, this constitutes a dismissal in law and the employee will be able to bring unfair dismissal claims if they have 2 years’ service. Whether the dismissal is fair depends on why the changes are needed and if the employers can establish that they had a substantial reason. However, a tribunal would always expect there to have been consultation and an attempt to reach agreement first.

If you plan to change the contracts 20 or more employees and/or considering dismissing and re-employing these staff on new terms, collective redundancy regulations will apply.

Restrictive Covenants
Most terms of a contract of employment cover the usual provisions of job title, salary, holidays, sick leave, and notice periods. However, an employer may wish to restrict an employee’s actions post-termination, by including restrictive covenants within the contract.

How we can help
If you want to make changes to your employee contracts and/or want legal advice to ensure the proper legal procedure is been followed we can advise you on the provisions before you propose them and advise on your obligations. For more information please contact Alexis Lane in our Employment Department.

Changing an employment contract is not a simple procedure and has a number of serious legal implications if an employer does not do it correctly

Discrimination

The law seeks to provide a level playing field at work so that people are employed, paid, trained and promoted only because of their skills and performance. There is no minimum length of employment requirement for an employee to make a discrimination claim and protection starts from when a role is advertised through to the last day of employment and beyond, including references.

Forms of discrimination in the work place
Discrimination at work can be direct or indirect. Under the law there are 9 protected characteristics and discrimination occurs when an employee is treated unfairly because of:

  1. age
  2. disability
  3. gender reassignment
  4. marriage or civil partnership
  5. pregnancy and maternity
  6. race or colour
  7. religion or belief
  8. sex
  9. sexual orientation

The Equality Act 2010 sets out four main types of discrimination:

  1. Direct Discrimination: This is discrimination against an employee because of one or more of the protected characteristics named above.
  2. Indirect Discrimination: This is where a policy or practice in the workplace causes a considerably smaller proportion of those with a protected characteristic to be unable to comply with the policy or practice than those who do not have the protected characteristic or who have a different protected characteristic.
  3. Victimisation: This is where an employee is treated less favourably because they have or might complain about discrimination or support someone else’s complaint about discrimination.
  4. Harassment: This is when an employee is subjected to unwanted verbal, non-verbal or physical conduct related to a protected characteristic which violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. It can include behaviour that individuals find offensive even if it’s not directed at them, and even if they do not have the relevant protected characteristic themselves.

How we can help
We will provide you with guidance and advice should an employee bring a claim of discrimination at work. We can advise on the strengths of the claim and help you try to resolve matters. For more information please contact Alexis Lane in our Employment Department.

Protection from discrimination starts from when a role is advertised through to the last day of employment and beyond, including references

Flexible Working

The government originally introduced the right to apply for flexible working in April 2003 to parents of children under the age of five. This right was extended over time and the current position is that in addition to parents with young children, employees are now entitled to seek the right to work on a flexible basis where they have disabled dependants under the age of 17 or 18, and also if the employee has caring responsibilities for a partner or family member.

If an employee wants to switch from full-time to part-time hours and they have been employed for 26 weeks, the law says they have the right to make that request of their employer. The employer does not have to agree to the request, but they must consider it in a reasonable manner, follow a specific procedure and are be obliged to consider the request in accordance with statutory timescales.

How we can help
We will advise you on your rights and guide you through the procedures if an employee applies for flexible working hours. For more information please contact Alexis Lane in our Employment Department.

An employer does not have to agree to flexible working but they must reasonably consider it, follow a procedure and keep within statutory timescales

Employment Tribunals

An employee can make a claim to an employment tribunal if they think someone has treated them unlawfully such as their employer, a potential employer or a trade union. Unlawful treatment can include:

  • unfair dismissal
  • discrimination
  • unfair deductions from your pay

The employee usually has to make a claim to the employment tribunal within 3 months of their employment ending or the problem happening.

Employment tribunal process
Before an employee can make a claim to the Employment Tribunal, they must tell the Acas that they intend to make a claim and try and settle the dispute with their employer without going to court by using their free ‘Early Conciliation’ service.

If conciliation does not work and the employee decides to press ahead with their claim the process is as follows:

  • Make a claim – the employee completes an ET1 claim form to make a claim to an employment tribunal.
  • The Response – The respondent usually has to reply to your claim in writing within 28 days of getting the claim form. They will give their side of the case and the tribunal will decide whether there will be a full hearing to decide on the case.
  • Preliminary hearing – the employee may be asked to go to an initial hearing (called a preliminary hearing) with the judge to decide whether part or all of their claim can go ahead, the date, time and how long the hearing should take
  • Provide documents – The employee can ask the respondent for documents that will help with their case, and request documents from you e.g. contract of employment, pay slips, pension scheme, notes from relevant meetings at work. Usually the tribunal will issue an order setting out a timetable for exchanging documents.
  • Organise witnesses – the employee can bring witnesses to the hearing if they can give evidence directly relevant to their case.

How we can help
We can represent you if a claim is brought against you in an employment tribunal, ensuring you comply with the procedures, guiding you through the final hearing and arranging counsel representation for you if required. Your case will be meticulously prepared and presented as best as possible with the facts in front of us. We will also seek to negotiate constantly to try and achieve settlement before the matter progresses that far. For more information please contact Alexis Lane in our Employment Department.

Your case will be meticulously prepared and presented as best as possible with the facts in front of us

TUPE

The Transfer of Undertakings Protection of Employment Regulations (TUPE)
The Transfer of Undertakings (Protection of Employment) Regulations 2006 is generally known as “TUPE”. These Regulations effectively provide obligations on current and new employers when a business transfer takes place and employees, are transferred. This situation can occur when a business, or part of a business, is merged or sold.

TUPE in straightforward terms largely means that employees are entitled to transfer to the new employer with their existing terms and conditions being “protected”. It means that if an employee was employed directly before the transfer, they automatically become an employee of the new employer, unless they object to being transferred and notify either employer. An employee’s continuity of employment remains unbroken and they retain all the rights and obligations under their contract of employment with their former employer. It also means that an employee cannot be lawfully dismissed in connection with the transfer (except in limited circumstances) and that they and their employee representative must be informed (and consulted with) regarding the proposed transfer.

The new and old employers have an obligation to inform and consult with the employees regarding the transfer of their employment and any implications for them. Failure to comply can lead to each employee being awarded up to 13 weeks’ pay in addition to any compensation for unfair dismissal.

The outgoing employer also needs to provide the new employer with prescribed information about the transferring employees. Failure to provide that information correctly at least 14 days before the transfer can lead to a claim from the new employer and a tribunal award of at least £500 in relation to each employee affected.

There can be costly penalties for employers who fail to comply with TUPE procedures and their obligations. Alexis Lane in our Employment Department can advise on the TUPE process and/or any related unfair dismissal claims.

TUPE offers protection so that when a business is merged or sold the employees retain
their existing terms and conditions

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