Employment Law for Law Centre Advisers

byLucy Twomey

10th October 2006

Introduction

Employment law overview

Troubleshooting

Referral

Outline

Are you advising an employee?

Potential claims

Checklist

Is the employee still in employment?

Are you advising an

employee?

Are you advising an employee?

Different types of employment status:

No single definitive test

Key factors:

Employee, worker, self-employed, etc

Control, mutual obligation, personal service, benefits, equipment, PAYE, degree of financial risk…

Are you advising an employee?

Ignore the label on the documents

Look at the reality of the working relationship

Agency workers: various status possible

Employee documentsWritten contract of employment

Written statement of terms: s1 ERA 1996

Policies and employee handbook

Not obligatory

Employer must provide

Check if incorporated into contract

Not obligatory

Advising employees after

employment has ended

Has employment ended?

Employer

Dismissal

Fixed-term contract expires

Dismissal for statutory claims

Employee

Constructive dismissal or resignation?

How?

When the employee has ended their employment…

Resignation

Constructive dismissal

Employee chooses to end employment

(NB TUPE 2006 exception)

Employee forced to leave employment:

employer’s behaviour fundamental breach of contract

Advising employees after a dismissal

Dismissed employee

Fixed-term contract expires

Employer dismissesConstructive

dismissal

Consider dismissal

related claims

Consider non-dismissal

related claims

Dismissal-related claims

Wrongful dismissal Breach of contract claim

Unfair dismissal Statutory claim: ERA 1996

Right to a statutory redundancy payment

Statutory claim: ERA 1996

Wrongful dismissal

Only employees

No minimum service

Time limits

6 years

High Court

3 months

Employment Tribunal: £25,000 limit

Wrongful dismissalExamples

Employer in breach of a contractual

disciplinary procedure

Employer in breach of implied term of mutual trust and confidence e.g. bullying

Constructive dismissal

Wrongful dismissal

Remedy: damages

Wrongful dismissal

Failure to give notice of termination or insufficient notice by employer

Breach of contract

Remedy: damages, remuneration during the notice period

A word about notice

Statutory minimum notice

Contractual notice

Exceptions to wrongful dismissal for breach of notice term

PILON clause Summary dismissal: gross misconduct

Unfair dismissal

Only employees

1 year minimum service (some exceptions)

Age limits?

3 month time limit: employment tribunal claim

Unfair dismissal

Two stage test

Potentially fair reason for dismissal

Was dismissal unfair?

1. Capability2. Conduct3. Redundancy4. Breach of statutory provision5. Some other substantial reason

Unfair dismissal

Stage 1: Five potentially fair reasons

Automatically unfair reasons

Band of reasonable responses testSize of employerAdministrative resourcesProcedural defectsDoes reason justify dismissal?

Unfair dismissal

Stage 2: Was dismissal unfair?

Unfair dismissal

Remedies for unfair dismissal

Order for reinstatement/re-engagement

Compensation (basic award up to £8,700 and compensatory award up to £58,400)

No upper limit in some cases

Right to a redundancy payment

Only employees

2 years’ minimum service

Age limits?

6 month time limit for an employment tribunal claim

Right to a redundancy payment

Statutory definition

Main redundancy situations:

Business closureCessation or reduction in work at place of employmentCessation or reduction of work of a particular kind

Right to a redundancy payment

Redundancy paymentBased on age, length of service and payMaximum £8,700

Offer of suitable employment

Unreasonable refusal = loss of redundancy payment

Redundancy and unfair dismissal

Unfair dismissal and redundancy situation

Consultation/warningFair selectionSuitable alternative employment

Special cases

Collective redundancies of 20 or more employeesMaternity cases

Did the employer follow an SDDP?

Statutory disciplinary and dismissal procedure: EA 2002

Dismissal includes redundancy and expiry of a fixed term

Some exceptions eg: constructive dismissal and harassment

Did the employer follow an SDDP?

Step 1

Step 2

Step 3

Letter with grounds for discipline/dismissal

Meeting

Appeal

Did the employer/employee follow the SDDP?

Failure to comply

Automatically unfair dismissal and increase in compensation up to 50%

Decrease in compensation by up to

50%

Employer Employee

Does the employee have a post-employment grievance?

Grievance NOT related to certain types of disciplinary action or dismissal eg. Refusal to provide a reference

Employee may need to follow a statutory grievance procedure (SGP): EA 2002

Grievance = grounds for a tribunal complaint

Advising employees who are still employed

Does the employee have a grievance?

Grievance = grounds for tribunal complaint?

Employee must follow an SGP

Some exceptions e.g. Grievance relates to certain types of disciplinary action

Does the employer’s grievance procedure apply?

Has the employee followed an SGP?

Step 1

Step 2

Step 3

Letter setting out grievance

Meeting

Appeal

Bringing a tribunal claim?

28 day waiting period after Step 1 otherwise claim barred

Have the employee/employer followed the SGP?

Failure to comply

Employer

Automatically unfair dismissal

Employee barred from bringing tribunal claim

Employee

Compensation increase by up to 50%

Compensation decrease by up to 50%

Is the employee being disciplined?

Some types of discipline = SDDP under EA 2002

Is the employee being treated unfairly?

Are there grounds for constructive dismissal?

Be careful! Constructive dismissal can be difficult to prove

Overlap with grievance procedure?

Potential claims during or post-employment

Pay

Unlawful deductions from pay: ERA 1996

National Minimum Wage

Equal pay for men and women: EPA 1970

DiscriminationSex

Race

Fixed-term employees

Sexual orientation

Religion

Age: new in 2006

Disability

Part-time workers

Sickness

Health and safety

Statutory sick pay

Contractual duty of care

Civil duty of care

Statutory duties HSWA 1974

Check contractual entitlements

Disability discrimination?

Working Time

Protection against less favourable treatment/ detriment/ dismissal

48 hour weekly limit

Rest breaks

Night workers4 weeks

paid annual leave

Young workers

Working time rules

Parental and carers rights

Paid leave

Unpaid leave

Maternity and ante-natal care

Parental leave

Paternity

Adoption

Time off for dependants

Right to request flexible working

Whistleblowing

Employees and workers

Good faith element?

Protected disclosure and manner of disclosure?

Transfer of Undertakings

Employment transfers to new employer

Business sale or outsourcing change of service provider?

Relevant transfer under TUPE Regs 2006?

Transfer-related changes to contracts are void and dismissal may be automatically unfair

Industrial relations

Employment protection on grounds of status and activities

Trade union members and employee representatives

Industrial action? Limited employment protection

Checklist

Are you advising an employee?

Is the employee still employed?

Dates, documents and details

Any dismissal related claims?

Checklist

Any other potential claims?

Time limits

Compliance with statutory dispute resolution procedures?

Referrals