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Watford: 01923 242 345 Amersham: 01494 722 326

info@elitelawsolicitors.co.uk

Elite Law Solicitors incorporates HM Law Costs Draftsmen Ltd and

Settlement Agreements

A settlement agreement is a legally binding contract between an employer and an employee where an employee agrees to waive their rights to make a claim to an employment tribunal or court.   In exchange for this waiver, the employer usually agrees to various payments that are over and above those the employee is legally entitled to.

Settlement agreements can be used to:

  • Legally terminate an employment relationship;
  • Settle disputes whilst the employee is still employed;
  • To settle claims already issued at the Employment Tribunal.

If you are an employee almost all settlement agreements include a contribution to the employee’s legal fees for dealing with the agreement.  We are usually able to work to the budget set by your employer and invoice them directly.

If you are an employer and need a settlement agreement to be drafted and/or advice on whether to offer a settlement agreement and/or how to conduct a s. 111A Employment Rights Act 1996 meeting we can provide assistance.

To discuss your needs please call us on 020 3440 5505 for a free initial consultation.

Tribunal Proceedings

In most cases the tribunal must receive your claim within 3 months. The time limit can be extended if the Early Conciliation Service is used. The rules are complicated rules and it is easy to fall foul of them.

A claim must be lodged with the tribunal in which the full nature of the claim must be explained. A fee must also be paid. For routine unfair dismissal cases, this is £250, unless you are entitled to a fee remission.

The Tribunal will review the claim form and then send the form to your employer. Your employer then has 28 days in which to submit its formal response to the claim.

Both parties will be provided with directions on how the case is to proceed and deal with the time periods for you to exchange evidence and also to agree a bundle of relevant papers to be used at the hearing.

A fee of £950 will need to be paid before the hearing can go ahead, unless you are entitled to fee remission based on a means test.

At the hearing the parties (and any witnesses) will usually be called to give evidence upon  which they may be cross examined. Judgement is usually given the same day.

Whether you are an employee or employer tribunal proceedings are dangerous waters and expert advice is recommended. To obtain advice please call us on 020 3440 5505 for free initial consultation.

Redundancy

Redundancy is a potentially fair reason for dismissing an employee. 

Redundancy happens where:

The employer’s business (or part of) has ceased to operate;

The employer has moved offices;

The business’ need for work of a particular kind has ceased /diminished;

Where a redundancy has been made it is the role, not the person, that is made redundant.

If an employer wishes to make an employee redundant a formal procedure must be followed. If it is not, the dismissal will be deemed unfair. In brief:

  • The need to make a redundancy must be genuine;
  • The procedure for selecting which roles go must be fair and objective;
  • There must be a consultation process with the staff;
  • Alternative employment must be considered. (There is no redundancy if an employer can offer suitable alternative employment)

For employers who wish to dismiss at least 20 employees at any one time there are more detailed procedures that an employer must follow to avoid repercussions.

Employees with at least two years’ service are entitled to the minimum of a statutory redundancy payment, tax free, which varies with salary, age and length of service. This is in addition to notice (or pay in lieu of notice) and accrued holiday pay.  Employees may also be entitled to a redundancy payment as set out in their contract of employment.

To discuss your needs please call us on 020 3440 5505 for a free initial consultation.

Bullying Claims

Bullying is not given a specific definition under employment law but is widely defined as invasive, intimidating, malicious or insulting behaviour; an abuse or misuse of power intended to undermine, humiliate, denigrate or injure the recipient.

It has objective and subjective elements which can include the following:

  • Unwanted physical contact
  • A culture which is offensive or oppressive to the victim
  • Jokes, offensive language and gossip
  • Posters, pictures and obscene gestures
  • Exclusion from work or social activities
  • Pestering, spying and stalking
  • Pressure to participate in political and/or religious groups

As an employer you are likely to have a written policy relating to bullying and harassment. It is vital that the policy is appropriate and is followed should the need arise.

As a bullied employee there are various ways in which to make a claim:

  • A claim for unfair constructive dismissal;
  • A civil claim for negligence, if the employer’s breach of the duty of care has caused mental or physical injury;
  • A claim for direct discrimination, harassment and/or victimisation where the bullying is on grounds of a protected characteristic (e.g. sex, race, disability, etc.) or on grounds of having complained of unlawful discrimination;
  • A civil claim under the Protection from Harassment Act 1997, if there have been at least two incidents of serious harassment;
  • A claim for detriment on grounds of protected disclosure (‘whistleblowing’), where the worker has made a qualifying protected disclosure;
  • A claim for failure to make reasonable adjustments, under the Disability Discrimination Act 1995, if the complainant is disabled.

If you need advice as either an employee or an employer do not hesitate to contact us on 020 3440 5505 for a free initial consultation.

Unfair Dismissal and Constructive Dismissal

A dismissal is when an employer terminates an employee’s employment whether that is with or without notice. In the event dismissal is without notice a payment in lieu of notice is usually made to the employee (this does not apply if the dismissal is for gross misconduct.

In order to pursue a claim for unfair dismissal an employee must normally have at least 2 years continuous service (There are exceptions; e.g. if the reason for dismissal related to pregnancy or maternity leave or due to ‘blowing the whistle’).

 A claim for unfair dismissal must be registered with ACAS within 3 months less one day of the date of the termination of employment.

As an employer if you want to defend a claim for unfair dismissal you must show that dismissal was for one of the permitted ‘fair’ statutory reasons:

  • Capability;
  • Conduct;
  • Illegal employment;
  • Redundancy or ‘some other substantial reason’ 

If the employer can prove the dismissal was for one of the above reasons, the tribunal goes on to decide whether the employer acted reasonably or unreasonably in treating this reason as justifying dismissal.

In a claim for constructive dismissal (i.e. where an employee resigns), the employee must first prove the dismissal. In order to do so the employee must show that:

  • The employer was in fundamental breach of the employment contract;
  • The breach was the reason the employee resigned;
  • The employee resigned promptly without ‘affirming’ the breach.

If a dismissal is deemed unfair, the employee will usually receive compensation in the form of a ‘basic award’ (equal to a statutory redundancy payment) plus a compensatory award. Normally the compensatory award cannot be more than the equivalent of 52 weeks’ gross salary.

If you need advice as either an employee or an employer do not hesitate to contact us on 020 3440 5505 for a free initial consultation.

Gross Misconduct

Gross misconduct is conduct by an employee that is so serious that it goes to the root of the contract and entitles an employer to dismiss the employee with immediate effect and without notice. The conduct must be deliberate or amount to gross negligence. Examples would include dishonesty, theft, assaulting a fellow employee and malicious damage.

Most employers should set out in their contracts of employment or office manual what they consider to be gross misconduct as this can vary from employer to employer. Doing this clarifies the position however just because the employer has listed an act as constituting gross misconduct does not mean a tribunal would agree.

As with all disciplinary matters an employer should investigate the allegations and give the employee the opportunity to respond. Any dismissal needs to be considered as “reasonable and proportionate” response by the employer. Dismissal without warning tends to only be fair in limited circumstances e.g. Dishonesty.

If the employer cannot properly justify a dismissal the employee may be able to claim unfair dismissal (although the employee does need to  meet the qualifying period of service, i.e. 23 months and 3 weeks).

An employee may also be able to claim wrongful dismissal on the basis that the employer has breached the contract of employment in failing to pay notice as a result of a wrongful gross misconduct allegation.

Allegations of gross misconduct are serious matters and therefore early professional advice is essential.

Whether you are an employer or employee please do not hesitate to contact us on 020 3440 5505 for a free initial consultation.

Employment Contracts

Surprisingly a contract of employment does not have to be in writing however an employee is entitled to a “written statement of particulars” of the terms of employment within 2 months of his/her start date (assuming a contract has not been provided).

The written statement of particulars must include certain key information including job title, pay, hours of work etc.

If no written statement of particulars has been provided the employee can apply to the Employment Tribunal who will determine what those particulars should be.

Once a contract has been signed, difficulties can often arise for the employer if the terms of that contract later need to be changed. 

Clear and up to date employment contracts and a staff handbook with all the latest policies/procedures can help ensure that both the employer and employee are clear as to their respective rights and obligations.  Drafting robust contracts at an early stage can help protect employers from tribunal claims.

If an employer is in breach of contract an employee can seek damages.

If you have concerns that your existing contracts/policies may not be compliant with employment law, need to put contracts in place or need any other advice regarding your contract(s) as either an employee or an employer do not hesitate to contact us on 020 3440 5505 for a free initial consultation.

Employment Status

A person can be an employee, a self-employed worker or a self-employed independent contractor. This status determines the employment rights of the persons in question.

The employment status of an individual is not always clear and although a contract may state that a person is an employee, a tribunal may determine that they are actually a self-employed contractor (or alternatively an individual you consider to be an independent contractor is actually an employee).

Incorrectly identifying those who work for you can have significant consequences for an employer such as an HMRC investigation into an underpayment of tax/national insurance or a potential employment tribunal claim for breach of employment rights that were not previously considered relevant.

Having strong employment/contractor contracts in place as well as consistent working practices is the key to avoiding these issues. If you are an employer we can ensure that those working for you have the appropriate documentation in place to support the position they hold.

If you are an employee we can assist in determining what your status is and what rights you have.

If you need advice do not hesitate to contact us on 020 3440 5505 for a free initial consultation.

Restrictive Covenants in Employment Contracts

Restrictive covenants (sometimes called ‘Post Termination Restrictions’) are included in a contract of employment to impose restrictions on the former employee’s commercial activities after that employee is no longer employed.

Such restrictions are by default viewed by the courts as being a ‘restraint of trade’ on the employee and not enforceable unless certain conditions are met.  In order for such clauses to be enforceable the onus is on an employer to demonstrate that the covenant in question goes no further than is reasonably necessary to protect the legitimate business interests of the employer.

The reasonableness of a covenant is a matter of law that is decided on a case by case basis and therefore careful consideration when drafting the covenants is key.

If you are an employer we can assist with preparation and/or review of the restrictive covenants needed to protect your business and offer tips on how to avoid them being considered unenforceable.

If you are an employee we can assist in ascertaining whether the restrictive covenants are reasonable and/or binding.

Do not hesitate to contact us on 020 3440 5505 for a free initial consultation.

Stress at Work Claims

Stress at work has become more and more prevalent in recent times and as a result more employees are seeking compensation from their employers.

 

There are two elements when seeking compensation for stress; financial loss and ‘pain and suffering’.

 

If you are an employer we can assist in minimising the risk of stress related claims via bespoke advice as well as the preparation of suitable policies and procedures.

 

If you are an employee and your claim for stress is caused by an act of discrimination by your employer you may have a claim under the Equality Act 2010 in the Employment Tribunal. In the alternative you may have a claim in negligence or breach of contract.

 

If you require advice and/or assistance do not hesitate to contact us on 020 3440 5505 for a free initial consultation.

TUPE Regulations

TUPE applies to all businesses in the UK regardless of size and is in place to protect employees when there is a ‘business transfer’ or a ‘service provision change’. 

A business transfer is where a business or part of a business changes hands and moves from one employer to another.  A service provision change covers situations such as an in house service being outsourced to a contractor, changing a contractor or bringing an outsourced service back ‘in house’.

If TUPE applies, an employee is likely to be required to follow a series of procedures such as consulting with staff within set time limits and providing the new employer with liability information regarding those staff transferring.

A failure to follow these procedures can lead to an employer being taken to an employment tribunal and potentially being held liable for significant penalties.

Whether you are an employer or employee, if you are concerned as to whether TUPE applies or if you are following the correct procedures, please do not hesitate to contact us on 020 3440 5505 for a free initial consultation.

Flexible Working Claims

Flexible Working is a variation of an employee’s working pattern e.g. Working from home, part-time working, flexi-time, job sharing, etc.

Any employee with 26 weeks or more service can request flexible working. It is important to note that although an employee can make the request an employer is not obliged to consent to it.

Employers do have to consider requests objectively and in a reasonable manner. There are many grounds on which an employer can refuse e.g. The employer would be unable to re-organise work amongst existing staff.

There are positives and negatives to flexible working. Some of the positives include:

  • It can assist employers in avoiding redundancies;
  • It shows that an employer is progressive and listens to the needs of its employees;
  • Employers can conduct more business outside normal office hours.

The negatives include:

  • Employers may have difficulty dealing with competing requests from staff to work flexibly.
  • Other staff may not be happy with the fact that others are working flexible hours whilst they are not;
  • The need to conduct a risk assessment of staff working remotely.

Whether you are an employer or employee please do not hesitate to contact us on 020 3440 5505 for a free initial consultation regarding flexible working.

Claims by Agency Workers

More often than not agency workers cannot bring an employment claim because they are not considered to be an employee but a category known as a ‘worker’. However, there are occasions where an agency worker is deemed an employee for the purposes of bringing a claim.

All workers, including agency workers have rights, namely they are entitled to:

  • Breaks and limits on working hours;
  • Not have unlawful deductions made from their wages;
  • Paid holiday;
  • Protection under health and safety laws;
  • The National Minimum Wage;
  • The right not to be discriminated against.

In addition to this the Agency Worker Regulations give agency workers the entitlement to the same or no less favourable treatment as comparable employees with respect to basic employment and working conditions once they have completed a qualifying period of 12 weeks in a particular job.   This includes equal pay to a permanent colleague in the same job, automatic pension enrolment and paid annual leave.

If an agency worker feels there is a claim to be made the claim should be made within 3 months. The agency worker may be entitled to a financial award which is mainly based on the loss of earnings. To discuss any potential claim (whether you are the agency worker or the employer) please call us on 020 3440 5505 for a free initial consultation.

Discrimination & Harassment Claims

A person suffering discrimination can bring a claim in the employment tribunal, usually within three months of the last ‘act complained of’. Employers are also usually vicariously liable (responsible) for the acts of their staff.

The Equality Act 2010 sets out certain ‘protected characteristics’ that are protected under the Act.  These include age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sex and sexual orientation.

There are four main forms of discrimination at work:

  1. Direct discrimination is where an employer treats an employee less favourably than others because of a protected characteristic.
  2. Indirect discrimination is where an employer puts in place a ‘provision, criterion or practice’ which applies equally, but adversely affects one group with a particular protected characteristic (e.g. women, persons of a certain age group) more than others and cannot be justified.
  3. Harassment occurs where a person is subjected to unwanted conduct related to a relevant protected characteristic that violates dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.  There are slightly different rules where a person is subjected to unwanted conduct of a sexual nature.
  4. Victimisation occurs where a person suffers less favourable treatment because he or she has been involved with an earlier complaint of discrimination.

In relation to disabled employees there are special provisions which put a positive duty upon employers.

Those that bring successful claims are awarded net loss of earnings caused by the discrimination and a payment for ‘injury to feelings’ upon which there is no cap.  There are also potentially claims for personal injury (physical or psychiatric) depending on the circumstances.

If you are an employer we can assist putting in place (and keeping under review) systems and policies which minimise the risk of discrimination. If a claim is brought whether by way of a grievance or through the Employment Tribunal we can guide you through the process whether you wish to defend or settle the claim.

If you are an employee and feel you have been discriminated against we can assist you through the process from start to finish.

We have particular experience and expertise defending and bringing claims of sexual harassment (harassing conduct of a sexual nature).

To discuss your needs please call us on 020 3440 5505 for a free initial consultation.