Employment law questions for employees

There are many situations where you may need to work with an employment lawyer; you may believe you have been unfairly dismissed or discriminated against in your workplace, you may feel like you have no choice but to leave, or maybe you have been called as a witness in a case to be heard at the Employment Tribunal.

All of these circumstances could leave you full of questions and uncertain where to turn, so we have answered your concerns here.  While these are no substitute for legal advice, they will help in explaining the basics and setting your mind at ease.

What happens if my companion is not available at the time chosen for a disciplinary or grievance hearing?

During a disciplinary hearing you have the statutory right to be accompanied by a companion. If your chosen companion is not available to attend the hearing at the proposed time, you can suggest another reasonable time which falls within 5 working days of the original date of the hearing. Your employer must then postpone the hearing to the new time. The period of time you suggest must be reasonable, which will depend on the individual facts of your case. In some situations, it may be necessary to postpone a hearing for longer than 5 working days; there was a recent case in which was allowed, however this will not be applicable to all.

If your employer has already rearranged the date of the hearing, and your companion is still not available, they may decide to hold a hearing without you and your companion. Your employer must inform you of their intention to do this, and let you know that the facts of the case will be heard and a decision will be made in your absence. Although this doesn’t breach your right to be accompanied, the Employment Tribunal may take this into account when deciding whether or not your dismissal was fair.

If you have a disability you should be aware of the possibility of discrimination if your employer holds the hearing without you or your companion. It may be that, for example, you have a disability and cannot attend because of reasons related to that disability. Your employer should then postpone the meeting until you are fit to attend the hearing.

You should choose a suitable companion who you believe will have the availability to attend a hearing, in order to avoid a hearing being held in your absence.

What are the consequences of lying on my CV?

It is becoming increasingly difficult for many job applicants to stand out from their competitors. In an attempt to secure jobs, people are often found adding ‘white lies’ on to job applications or CV’s, but doing so could have serious consequences.

Knowingly making false statements in a job application or on a CV is considered to be a criminal offence under the Fraud Act 2006. On conviction, you could be sentenced to up to 10 years in prison and/or penalised with a large fine. Whilst prosecution is rare, there are other consequences to providing false information. Lying on a CV could mean that you do not secure employment or it could result in a dismissal for gross misconduct on discovery that you’re unable to carry out the job to the required standard. Employers could also think that because you have lied about your qualifications, you have a tendency to be dishonest.

For certain jobs, qualifications are necessary to carry out a particular role and some sectors are regulated by an overarching regulatory body. Where this is the case, and it is found that you’ve lied on your CV, action by the regulator may also be taken. This could seriously damage your reputation and you could struggle to seek alternative employment with other employers within your chosen sector.

Within every contract of employment, there is an implied duty to maintain trust and confidence between both employer and employee. Lying on a CV could mean that this trust and confidence is breached. In this instance an employer will have the right to dismiss without notice, following a fair procedure.

Can I work for someone else during my garden leave?

Employers often include a garden leave clause in contracts of employment, which can be used by them at the point in which you give notice that your employment is coming to an end. A garden leave clause will prevent you from coming into work, carrying out your usual duties and contacting business clients for the duration of your notice. Your employer may exercise this right if they believe there is a risk that you may take clients with you to your next role, access confidential information and/or intellectual property; a garden leave clause can also prevent you from going to work for a competitor. You will continue to receive your usual remuneration and benefits whilst on garden leave.

It is important to note that the existence of a garden leave clause does not necessarily give your employer power to exclude you from the workplace for the whole of your notice period, unless they can show that this is necessary to protect a legitimate interest.

You need to be aware that during any period of garden leave your employment contract remains in place. Therefore, your employer must continue to perform all the terms of the contract. You must also abide by all your contractual obligations; in some circumstances this will mean carrying out alternative duties to those you usually perform.

You are not able to work for another employer during a period of garden leave as you’re still employed by the company and therefore subject to the terms and conditions of employment. Most employment contracts contain an express duty of fidelity to your employer and an express prohibition from working elsewhere whilst employed. As the employment contract remains in force during a period of garden leave, working for someone else will be a fundamental breach of contract.

For more information on restrictive covenants and garden leave please click here.

Should I get paid for sleep-in shifts?

There has been contradictory case law on whether or not individuals should be paid for their time when they are asleep on shift, a common issue for those in the care sector. A recent Court of Appeal case, Royal Mencap Society v Tomlinson-Blake, has illustrated that this is a complex area of law and the outcome will depend on the individual circumstances of the case.

If you’re contractually obliged to spend the night at your workplace, and are expected to sleep at your workplace during that shift and attend to issues which arise during that time, then you are treated as being available for work rather than working. As such, only the hours that you are required to be awake for the purposes of carrying out your duties are paid. This should be paid at least at the national minimum wage.

If you sleep-in, for example at a care home, and are required to attend to issues which arise during the night, you are merely available for work and are entitled to only be paid the national minimum wage for the time whilst you carry out your duties.

Decisions regarding sleep-in workers are often fact specific and there are many factors employers will consider when deciding if you should be paid or not. These factors include; the purpose of the work, any restrictions imposed on you, the degree of responsibility and the immediacy of the requirement to provide services.

This decision is subject to appeal and is likely to be appealed to the Supreme Court. It may therefore be that the position in this area of law changes.

Is my settlement agreement taxable?

On the 6th April 2018, the way settlement agreements are taxed in relation to notice pay have changed; specifically Payments in Lieu of Notice (PILON).

Previously, the tax treatment of PILON was dependent on whether you have a clause in your employment contract; now however, it’s irrelevant. If you are receiving a PILON under the terms of a settlement agreement it should be taxed as earnings, in the same way as if you had worked your notice in full.

Where a payment is made, your employer will need to calculate how much of the payment is Post Employment Notice Pay (PENP). Employers must treat the portion of the payment which reflects the notice period as subject to tax and National Insurance deductions. Your employer should have a set calculation in order to work this out, and should state in the settlement agreement terms which payments they consider to be subject to tax (if not you may be liable to pay any outstanding tax once the agreement has been signed).

The rules regarding PENP mean that employers now have to state clearly in the terms of the settlement agreement what portion of the payment is PILON, and what is compensation for loss of employment. Any payment for the loss of employment will benefit from being free of tax up to £30,000.

If you’re paid for outstanding benefits in your settlement agreement, for example, unused holiday entitlement, then this should have tax and National Insurance contributions deducted from it, as if you carried on working for the company.

This is a very complicated area of law; if you have any questions about the settlement agreement you have been offered, please contact the employment team on the details above.

What are my employer's duties to support me with my dyslexia?

10% of the population are affected by dyslexia to some degree, which could lead to problems in the workplace. Employers have a responsibility to ensure your welfare, so what should they be doing to support you with your dyslexia?

Your employer has a duty to not treat you detrimentally because of any disability. It is arguable as to whether dyslexia would be classed as a disability under the Equality Act 2010 (EA 2010). The EA 2010 defines a disability as a physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities; which, depending on the severity of your condition, could include dyslexia.

You may have developed coping mechanisms for your dyslexia; however, if your strategy stops working, for example, in stressful circumstances at work, the effects could hinder your ability to manage your condition.

This could then lead to problems at work and your employer should try to be understanding of this. You may want to ask them to make reasonable adjustments to help prevent your dyslexia from interfering with your work. If they fail to make these reasonable adjustments for you, this could amount to discrimination. We would recommend you discuss your symptoms and the impact of those with your employer as soon as you can, as they may be able to make one of the following examples of reasonable adjustments:

  1. Providing modified equipment
  2. Making instructions and manuals more accessible
  3. Providing a reader or interpreter
  4. Being flexible about working hours, allowing you to have different core working hours and to be away from the office for assessment, treatment or rehabilitation
  5. Making adjustments to the buildings
  6. Allocating the work to someone else
  7. Providing training or retraining if you cannot do your current job any longer
  8. Transferring you to another post or place of work

You may be asked to meet with Occupational Health who will prepare a report for your employer to give them a better understanding of your particular condition; the report will also provide specialist advice on the adjustments which could be made to support you, and help you to remain at work.

If you feel that you have been treated less favourably by your employer because of your disability, then you may be able to bring a claim to an Employment Tribunal. The compensation which you can receive for disability discrimination is uncapped, and depending on the nature of the treatment, maybe a substantial sum.

What rights do I have on maternity leave?

Statistically, the most births take place today, Wednesday 26th September.  With the highest rate of births at this time of year, there are an increasing number of mothers starting maternity leave; here we let you know what rights you have.

You are entitled to 26 weeks’ statutory leave, referred to as Ordinary Maternity Leave (OML), no matter the length of time you have been working for your employer.  Depending on your length of service, you may also be entitled to Additional Maternity Leave (AML), which is an additional 26 weeks' statutory leave beginning the day after OML ends.

It’s important to remember that you are still employed throughout OML and AML (unless your employment ends by other means), and entitled to the same employment benefits that you would have received whilst working, however this doesn’t include types of remuneration.  There are special provisions for women on maternity leave e.g. statutory maternity pay and pension entitlement, but you should also be aware of the following:

  1. Pay rises - you are entitled to any pay rise which has been awarded to you during your maternity leave, meaning statutory maternity pay may need to be recalculated.  Any pay rise should be backdated to the beginning of the maternity leave, regardless of when the pay rise commenced e.g. if your maternity leave began in April, and you received a pay rise in June, the payment would need to be backdated to April.
  2. Bonuses - if a bonus is awarded whilst you’re on maternity leave, the employer can pay this bonus to you on a pro-rata basis depending on how much of the time you have been on maternity leave.
  3. Sick pay – while you are entitled to some benefits, you are not able to receive sick pay during maternity leave.
  4. Keeping in touch days - you will normally be entitled to payment for keeping in touch days (subject to agreement).
  5. Redundancy - you are not immune from redundancy, but you do have enhanced rights.  If you’re on maternity leave, you must not be disadvantaged by the selection criteria for redundancy; employers must also be sure not to give a female employee preferential treatment which could lead to a male colleague being made redundant.  If you’re selected for redundancy, your employer must make an effort to find you a similar role within the organisation – if there is a role, you shouldn’t be asked to go through a competitive interview process.
  6. Dismissal - irrespective of how long you have worked in the role, if you’re dismissed while on maternity leave then you are automatically entitled to written reasons for that dismissal.

Before you go on maternity leave, it would be prudent to have a conversation with your employer about how they, and you, wish to keep in touch while you are on maternity leave.  This would be in addition to your keeping in touch days, and would include being notified with general information about the business, for example internal newsletters, job opportunities, invitations to the Christmas party etc.

What happens if I don't get paid my settlement figure?

Before answering this question, it is important to differentiate between a settlement figure when your employer offers you a settlement agreement and a settlement figure when a claim you have brought against your employer is settled at ACAS, known as a COT3, instead of proceeding to trial. 

Settlement agreements are written agreements which are intended to either settle or resolve potential employment law claims. Most settlement agreements are entered into before you or your employer has contacted ACAS, or before legal proceedings have begun.  You can find out more information about settlement agreements here.

Settlement agreements are contractual in nature, and if your employer does not pay the settlement sum, you could bring a claim for breach of contract.

If your employer fails to pay on time interest will be added to the settlement figure.  If attempts have been made to recover the payment from your employer but these have proved unsuccessful, the following enforcement methods are available:

  1. Warrant of Control – This is the most common method. You appoint an enforcement agent who will take control of the goods belonging to your employer; the enforcement agent will then sell them in order to repay the amount owed to you.
  2. Third Party Debt Order – If your employer is obligated to pay your settlement figure by the court, and it remains unpaid, their accounts can be frozen and taken control of in order to pay the settlement figure.
  3. Charging Order - This places a charge (similar to a mortgage) over your employer’s assets such as land. The charging order means that if your employer wants to sell their property, you will be paid out of the proceeds.
  4. Penalty Notice – An enforcement officer will send a final written notice to your employer if they have failed to pay the settlement figure in full before the specified date. They will then be issued with a notice requiring them to pay a financial penalty of 50% of the unpaid settlement (lower limit of £100, upper limit of £5,000). Both the settlement and the penalty sum should be paid within 14 days of the penalty notice.

In contract, a COT3 is a type of settlement agreement which is usually entered into when both parties reach a settlement via ACAS. If a settlement is agreed under a COT3, for enforcement purposes, it will be categorised as either an ACAS settlement, which provides only for the payment of money, or an ACAS conditional settlement, which becomes payable subject to meeting certain requirements and obligations.

For an ACAS conditional settlement, all of the above enforcement methods are possible; however the court must first grant permission for the enforcement to proceed.

It is rare that an employer does not pay the settlement figure as they have agreed to settle and are often keen to make payment and move on.  If you do find yourself in the situation that they have not paid, we would always recommend you seek legal advice before taking the steps above. 

What happens if my time limit for a claim falls on a weekend?

If you are bringing a claim for unfair dismissal, the standard rule is that you have to issue proceedings at the Employment Tribunal within three months of the dismissal, and failure to do so will result in the claim being time-barred. That is enshrined in s.112 Employment Rights Act 1996; so if the last day of employment is 29 August, the claim must be received by the Tribunal on, or before, the 28 November.

Where you have gone through ACAS for early conciliation to attempt to resolve the dispute, there are rules for specific extension of this limitation period.

The Tribunal also has discretion to extend this time limit further, but only where it is satisfied that it was "not reasonably practicable for the complaint to be presented before the end of that period" and that the claim was then brought within a reasonable time.

What if your limitation date falls on a non-working day – a weekend or bank holiday? Is the limitation period automatically extended to bring it to the next working day?

That question was recently answered by the Employment Appeal Tribunal (EAT) recently in Miah v Axis Security Services Ltd. In this case, the limitation period ended on a Sunday. It was argued in that case that rule 4(2) of the Employment Tribunal Rules of Procedure 2013 gave the claimant an extra day to bring the claim. The rule states: “If the time specified by these Rules, a practice direction or an order for doing any act ends on a day other than a working day, the act is done in time if it is done on the next working day.”

The EAT decided that the key phrase in that rule was “by these Rules”. The rule did not apply to the Employment Rights Act 1996, so the extension does not apply to the limitation date to bring an unfair dismissal claim. The limitation date is the limitation date. Weekends and bank holidays do not give the claimant more leeway.

It is extremely important to make sure that claims are issued within the limitation period which can sometimes have complex rules, or you could find that an otherwise perfectly valid claim may be barred.

Is being left-handed a disability?

This is certainly an interesting question, but being left handed is not a disability. You cannot be discriminated against for being left handed; and employers aren’t obligated to make reasonable adjustments (such as left handed scissors and workstations) to make life easier for their left handed employees.

However, left handed people are potentially disadvantaged, working in a world dominated and designed for right-handed people.

A recent study found that left handers, who make up approximately 10% of the population, live on average nine years less than right handers. One of the many reasons touted for this was “increased health risks from environments designed for right handers.”

Ergonomics in the workplace could form part of these environments. A left handed mouse and smudging pens are at the lower end of the spectrum - although could be uncomfortable and lead to problems such as repetitive strain injury. The main risks arise when a left handed worker is using heavy equipment designed for a right handed person. Although an employer need not make reasonable adjustments from an equality perspective, they should ensure that the equipment is sufficiently safe for a left hander to use.

A recent study showed that demotivated employees suffer a 31% loss in productivity, with a massive 81% being more likely to quit their job. There are a number of small steps employers can take to make a left handed employee feel appreciated, a little more valued by the company and a little more motivated. These small steps could include providing left handed stationery or left handed computer equipment.

So, although employers don’t need to worry about discriminating against left handers or any legal requirement to make reasonable adjustments for them, they should consider both health and safety issues and your general wellbeing. Making the effort to engage and taking those extra steps to make you more comfortable may result in a happier, more present and more productive workforce.

What does whistleblowing mean?

When someone reports or exposes wrongdoing, whether that is within their organisation, to an external body, a regulator, or sometimes to the press, it is classified as whistleblowing. But what protection is given to whistleblowers?

If you make a ‘protected disclosure’ you have statutory protections against dismissal or detrimental treatment at work, as a result of the disclosure having been made. However, there are many criteria that need to be satisfied before the disclosure becomes a ‘protected disclosure’.

You must have a reasonable belief that one of the following has taken place, is taking place, or is likely to take place, and the disclosure must relate to a:

  1. Criminal offence
  2. Breach of a legal obligation
  3. Miscarriage of justice
  4. Danger to the health and safety of any individual
  5. Damage to the environment
  6. Deliberate concealing of information about any of the above

You must reasonably believe the disclosure is in the public interest – and a wide interpretation may apply to this. The public interest reason does not need to be why you made the disclosure (indeed the current position is that the disclosure need not even be made in good faith!), but you must reasonably believe that it is in the public interest.

Whether a disclosure is protected largely depends on to whom the disclosure is made. The law encourages internal disclosure, but there is also limited protection where the disclosure is made to certain prescribed third parties, such as the Health and Safety Executive, or a Government Minister. Disclosure to parties such as the police or the media are protected in very limited circumstances.

What are my rights if my employer goes into administration?

When your employer goes into administration, it can be a stressful and uncertain time – but knowing your rights can help to alleviate that burden. So what are your rights?

Administration is governed by the Insolvency Act 1986 (the “Act”), and your employer will first appoint an administrator who will try, where possible, to rescue the company. Employment contracts do not automatically terminate when an administrator is appointed.

Once an administrator has been appointed the ‘14 day rule’ takes effect, this identifies your claims against other debts of the insolvent company. Employment contracts do not automatically terminate when an administrator is appointed, but you and your colleagues will be ranked, with the administrator looking at how payments should be dealt with.

If you are dismissed within this 14 day period you are classified as an ‘ordinary creditor’, and so appear in the last category of people to be paid (save for outstanding wages and redundancy payments).

If you’re retained after the 14 day period has expired but haven’t received payment (such as wages, holiday pay, sick pay, payments in lieu of holiday and certain pension scheme contributions) you are automatically treated as a high priority and will receive the outstanding amount much earlier. As such, there is a greater chance that you will be able to recover most, if not all, of the money owed to you. You will retain your usual employment rights throughout the administration period.

Do I still get paid whilst on jury duty?

Being called up for jury service is something many people will experience during their working life, but what are the rights of employees that are required to take time off work to complete jury service.

If you are called up for jury service then your employer is required to give you time off to allow you to complete your required jury service. Your employer can request that your jury service is delayed where your absence would have a serious effect on business.

There is no legal requirement for your employer to continue to pay you while you undertake jury service.  Your employer has the choice whether to decide to pay you or not. Most employers will have a policy dealing with time off for jury service which will state whether this time off will be paid or unpaid. Where your they decide not to pay you, you can claim loss of earnings from the Court. Loss of earnings is set at a prescribed rate by the Court and is not based on an individual’s salary at the time they complete jury service.  You can also claim travel, parking and food and drink costs from the Court. Should an overnight stay be required by the Court they will arrange accommodation for you.

Should you be unreasonably refused time off to attend jury service, or are treated detrimentally as a result of being summoned for or taking time off for jury service, then you may be able to complain to the Employment Tribunal. Should your employer dismiss you for carrying out jury service then you may have a claim for unfair dismissal.

How can I claim a redundancy payment from an insolvent employer?

If you are unable to obtain a redundancy payment from your employer because they are insolvent, you can apply for payment of a statutory redundancy payment from the state guarantee fund or National Insurance Fund.

Most liabilities of your employer to you (including judgment debts) will rank as unsecured claims in a formal insolvency process and rank second to last in the order of priority.  Unsecured creditors (such as employees) generally receive, at best, a few pence of every pound owed to them. However, certain limited employment debts have preferential status and rank third in priority.  They should therefore mean a higher proportion of the debt is recovered.

Former employees of an insolvent employer will be able to claim certain debts from the National Insurance Fund (NIF).  Other statutory payments can also be claimed from HM Revenue and Customs or the Pension Protection Fund.

There are several options available to you:

  • Bring legal proceedings in the Employment Tribunal (this can include where there has been a TUPE transfer but excludes situations where there is a stay on legal proceedings or when a compulsory liquidation procedure has been started)
  • Claim in your insolvent employer's insolvency process
  • Claim certain statutory payments

In this situation an employment claim must be brought within six months of the relevant date.

What bank holidays am I entitled to?

The increase in statutory annual leave entitlement to 5.6 weeks on 1 April 2009 represented a total increase of eight days for a full-time worker.  This was intended to address the fact that there was no entitlement to public holidays under the Working Time Regulations 1998, and many employers were counting the eight public holidays (in England and Wales) as part of the then four-week annual leave entitlement.

The right to a total of 5.6 weeks' annual leave each 'leave year' is made of:

  • a basic entitlement to a minimum of four weeks’ annual leave (20 days for a regular full-time worker), implementing the right to annual leave under the Working Time Directive
  • an additional entitlement to 1.6 weeks' annual leave (eight days for a regular full-time worker) which is a right under domestic legislation only

Despite the increase in annual leave, there is still no statutory right to time off (paid or otherwise) on any public holiday.  Bank or public holidays do not have to be given as leave, however time off for bank and public holidays may be included in the additional (or basic) entitlement.  Whether you can be required to work on a public holiday is a matter for your employment contract or, in some cases, simply your employer's managerial prerogative.  In many industries or occupations (such as retail, travel or emergency services), working on public holidays is a commercial or operational necessity.

Where employers allow (or even require) workers to take leave on public holidays, this may count against statutory leave.  Despite this, many employers give paid holiday on the public holidays in addition to the minimum statutory leave entitlement.

Can I discuss pay with my colleagues?

You can discuss your pay with colleagues, unless your employment contract contains a pay secrecy clause.  In this situation, you will only be able to discuss your pay with others if you are trying to find out if you are being discriminated against.

Your employer could seek to rely on an existing pay secrecy clause in Court proceedings which will generally be enforceable except insofar as it applies to "relevant pay disclosures".  A relevant pay disclosure is a disclosure "made for the purpose of enabling the person who makes it, or the person to whom it is made, to find out whether or to what extent there is, in relation to the work in question, a connection between pay and having (or not having) a particular protected characteristic".   This is intended to strengthen the "ban" on pay secrecy clauses.  Therefore in order for a secrecy clause to be unenforceable, and for the protection against victimisation to be available, the disclosure in question must be made with the possibility of pay discrimination in mind.

If your employer was to include a pay secrecy clause in your employment contract then they would be required to specify the circumstances in which the pay secrecy clause will not apply as set out under the Equality Act.

If you are awarded a pay increase and given a clear instruction to keep this confidential but then you disclose this for a reason other than the exclusion referred to above, then your employer may pursue disciplinary action against you for breach of trust and confidence or a failure to obey a reasonable instruction.   You could offer the defence that the disclosure was made with a view to establishing whether there is a correlation between pay and a particular protected characteristic, which would be a difficult claim for your employer to dispute.

What is the difference between direct and indirect discrimination?

There are a number of different types of discrimination under the Equality Act 2010 with the two key types being direct and indirect discrimination.  It is unlawful for your employer to discriminate against you if you have one of the nine ‘protected characteristics’ which these are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sexual orientation, and sex.

Direct Discrimination

Direct discrimination is where a person is treated less favourably because of one of the nine protected characteristics.

Direct discrimination can occur if someone believes you have one of the protected characteristics and therefore treats you less favourably, and where you are treated less favourably because a colleague, associate, family member or friend has a protected characteristic.

A clear example of direct discrimination would be where a female employee with the best qualifications and experience is denied a promotion over a male candidate with less experience and fewer qualifications.

There is no ability for an employer to justify direct discrimination except on the basis of age.  For example, if your employer gives employees above a certain age an enhanced redundancy payment based on their belief they will find it difficult to find alternative employment because of that age.

Indirect Discrimination

Indirect discrimination relates to a policy, criterion or practice (PCP) your employer has which has the effect of disadvantaging people with one of the protected characteristics.

Indirect discrimination may be justified and will be lawful where your employer can show there is an objective justification. Your employer must show the PCP is a proportionate means of achieving a legitimate aim, which may include the health and safety of employees or specific business requirements.  There should also be no reasonable, less discriminatory alternative.

An example of possible indirect discrimination could be requiring employees to work full time.  This could put female employees at a disadvantage because they are more likely to be the primary carer for children and may need to work part time or have flexible working.

Do I have a whistleblowing claim?

There are strict protections given to those who make a whistleblowing disclosure and dismissal for making a protected disclosure will be automatically unfair.  There is no minimum period of service requirement to bring a whistleblowing claim.

The following must be satisfied in order for you to bring a claim:

  • Qualifying disclosure:
    • You must make a disclosure of information; gathering evidence or threatening to disclose is not sufficient.
    • The disclosure must be in relation to one of the six types of “relevant failure”; criminal offences, breach of any legal obligation, miscarriages of justice, danger to the health and safety of an individual, damage to the environment or deliberate concealing of any of these failures
    • You must have a reasonable belief that the information shows one of the relevant failures
    • You must have a reasonable belief that the disclosure is made in the public interest
  • Protected disclosure:
    • You are encouraged to make the disclosure to your employer as disclosure to third parties may be protected but further conditions must be met

You have the right not to be detrimentally treated on the grounds that you have made a protected disclosure. There is no definition of the term detriment, however, the Whistleblowing Commission Code of Practice sets out a number of examples of disadvantages that could be classed as a detriment, including but not limited to:

  • Demotion
  • Ostracism
  • Suspension
  • Denial of training
How do I make a flexible working request?

More employers are offering flexible working as an option for their employees’ to maintain a healthy work-life balance.  If you would like to make such a request to your employer, there is a statutory process that needs to be followed.

To be eligible to make a flexible working request you must have at least 26 weeks service as an employee.  You are only entitled to make one flexible working request in a 12 month period, and must be in writing as well as stating:

  • the date the request is made
  • the change to working conditions you are seeking
  • the date you would like the change to take effect
  • whether you have made a previous application for flexible work and the date of that application
  • how you think the change to work conditions may affect the business e.g. cost saving for the company
  • if you are making your request in relation to the Equality Act 2010 e.g. allowing a disabled employee flexible working may be a reasonable adjustment

Once your request is received, your employer has three months in which to consider the request, discuss the request with you and notify you of the outcome.  Should your employer grant the request then this will become a permanent change to your contract.  If you are seeking for this to be a temporary change only, you must notify your employer when making the initial request.

Employers are obliged to consider any request in a reasonable manner and can only refuse them for one of the eight statutory reasons, being:

  • the burden of additional costs
  • an inability to reorganise work among existing staff
  • an inability to recruit additional staff
  • a detrimental impact on quality
  • a detrimental impact on performance
  • detrimental effect on ability to meet customer demand
  • insufficient work for the periods the employee proposes to work
  • a planned structural change to the business.

You can complain to an Employment Tribunal if your employer:

  • fails to deal with your application in a reasonable manner
  • fails to notify you of the decision application within the decision period
  • fails to rely on one of the statutory grounds when refusing your application
  • bases its decision on incorrect facts
  • treats your application as withdrawn when the grounds entitling them to do so do not apply
What is the time limit to bring a claim in the Employment Tribunal?

There are strict time limits that apply to claims which are dealt with in an Employment Tribunal.  The time limits vary depending on the type of claim but the time limit is usually three months less one day from the last discriminatory act or the date that the employment terminated.

However, this is now subject to compulsory ACAS Early Conciliation (EC).  Anyone considering issuing an Employment Tribunal claim will usually need to submit an Early Conciliation notification to ACAS, to see whether the dispute can be resolved through conciliation.  This step needs to be done before issuing a Tribunal claim otherwise your claim might be rejected by the Employment Tribunal.

Where ACAS EC applies, ACAS must be notified in advance of the applicable time limit for the claim. The claim must then be presented to the Employment Tribunal within a set period after the ACAS EC certificate is issued.  Time spent in ACAS EC generally stops the clock and means that you have more time to issue your claim.  However, the rules relating to how the extension of time operates are complicated especially where you have more than one type of claim or more than one potential employer and therefore you should seek legal advice on this.

If it is the employer that contacts ACAS EC, an employee will not benefit from any extension of time to the usual Tribunal time limit for issuing Employment Tribunal claims.

If you fail to present a claim in time you will generally lose the right to pursue a Tribunal claim.  The Tribunal does have the power to award an extension to the time limits but only in exceptional cases.  You should seek specific legal advice on this if you are unsure about the time limits that apply to you.

Subject to the requirement to enter into ACAS EC, the time limits for certain claims are:

  • Unfair dismissal or wrongful dismissal – the claim must usually be presented to the Tribunal within 3 months from the date of dismissal.  This effectively means that the deadline to submit the ACAS Early Conciliation notification is 3 months less 1 day following a dismissal
  • Statutory redundancy payment (SRP) – you will lose your entitlement to a statutory redundancy payment unless, before the end of a period of 6 months from the date that the right to a SRP arises, you have made a claim in writing to your employer for the payment, or presented a claim to the Tribunal for the SRP and/or for unfair dismissal.  The Tribunal has the power to extend this time limit in certain circumstances
  • Discrimination – the claim must usually be presented to the Tribunal within 3 months from the act of discrimination.  This effectively means that the deadline to submit the ACAS Early Conciliation notification is 3 months less 1 day from the act of discrimination complained of
  • Deductions from wages – the time limit for presenting a claim for unlawful deduction of wages is usually 3 months less one day from the date of the last deduction or if you have made a payment to your employer, a claim should be issued within 3 months of the date when the payment was made
  • Equal pay – a claim should usually be issued within 6 months of the termination of employment

The rules relating to time limits are complex and therefore you should seek legal advice about your particular situation as soon as possible in order to reduce the risk of issuing a Tribunal claim outside of the applicable time limit.

How should my employer respond to my sexual harassment claim?

Recent media coverage of sexual harassment in the workplace has brought to everyone’s attention the need to ensure allegations of this nature are dealt with in the appropriate fashion by employers.

Your employer must carry out a thorough investigation once an allegation has been made, ensuring that those assigned to each stage of the procedure have the relevant experience and skill set to deal with matters sensitively and efficiently, remaining independent and impartial to all parties. All relevant witnesses should be interviewed and any supporting documentation must be sought.

There are of course additional factors to contemplate if the complaint is historical.  Depending on the circumstances, it could still be possible for you to bring a discrimination claim and if a fair procedure is not adopted, a claim for constructive unfair dismissal.  The fact that it is historical does not therefore relieve your employer from their duty to investigate and follow a fair process.  This could also be an opportunity for your employer to improve current practices and policies.  However, employers will need to think carefully about whether or not a fair investigation is still possible, particularly if the person alleged and/or any relevant witnesses have left the business.

Your employer should avoid making assumptions and jumping to conclusions. It is important they ensure that all parties are protected as far as possible while the matter is being investigated.  Sensitivity and confidentiality during the investigation is key and must be communicated to all individuals involved.

Employers may have to investigate incidents that take place outside of working hours, but as we have seen from recent case law, your employer could be just as liable where the alleged conduct occurs at a work event, such as office parties or work-related trips.

Your employer should not ignore the issue or avoid taking disciplinary action where a finding of guilt is made simply because the employee is a ‘high performer’, or because it is their ‘first offence’.  This can create significant problems amongst other employees in the long run.

A clear and robust approach to equal opportunities gives employers a defence to discrimination claims even where they are of a sexual or other unlawful harassment nature as long as they can demonstrate that they have taken all ‘reasonable steps’ to prevent the discrimination from occurring.

I’m on a fixed term contract; can I bring an unfair dismissal claim?

Fixed Term Contracts have always been popular with employers as a way to fill a ‘gap’ for a temporary period.  Fixed Term Contracts are given by employers on the basis that the contract will terminate at a future date when a specific ‘term’ expires. For example, in the following circumstances:

  • Where someone is needed for a specific task or project, such as research
  • Where funding comes from an external source and may not be renewed after a fixed period (typically within charities or education)
  • Where demand for a particular post is not clear and the employer wishes to carry out a trial period before committing themselves to offering a permanent position
  • To provide maternity cover, or to cover for someone on sabbatical or long-term sick leave

There are some myths around fixed-term contracts, hence employers risk facing potential claims being brought against them as a result of being ignorant of fixed-term employee rights.  As a fixed-term employee, you are protected from unfair dismissal and the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 ensures that you cannot be excluded from the contractual benefits and facilities offered to permanent staff since you are entitled to raise a complaint as a result of being treated less favourably.  

If you are dismissed before the end of your fixed-term contract you may have a claim for wrongful dismissal, unless the contract contains a provision for earlier termination on notice and your employer has complied with that provision, or if you have committed a fundamental breach of contract such as gross misconduct.  Your employer may be liable to pay damages up to the amount you would have earned during the remainder of the fixed term.

You may also have a claim for unfair dismissal, subject to the usual principles governing unfair dismissal and qualifying period. The Tribunal would have to consider whether your employer had a potentially fair reason for dismissal, had followed a fair procedure, and acted within the ‘range of reasonable responses’ test in treating that reason as a sufficient reason for dismissal in all the circumstances.

In circumstances where you continue after the end of the fixed-term, there may be a dismissal if the terms and conditions are not the same as the original contract.  In reality, if the contract terms have improved, the issue is unlikely to arise.  However, if the terms have changed for the worse, you could accept the new terms on offer and still pursue a claim for unfair dismissal based on the termination of the original contract.

What is the difference between unfair and wrongful dismissal?

The difference between unfair dismissal and wrongful dismissal is that they are two different types of employment claims that potentially arise when an employee is dismissed.  Both you and your employer should consider carefully the practical benefits and difficulties which arise from the two types of claims. 

Unfair Dismissal

At common law, your employer can dismiss whenever they choose, whether you have any good reason or not.  Provided your employer gives a full notice and otherwise complies with the contract, you have no remedy.

In order to give a measure of protection against dismissal at the whim of your employer, the statutory claim of unfair dismissal introduced the concept of fairness into termination of contracts of employment.  Your employer must be able to show not only that they had a good reason to dismiss, but also that they acted fairly in, for example, the way in which the dismissal was handled.

The onus is on your employer to show that the dismissal is for one of the five permitted reasons, which are capability or qualifications, conduct, redundancy, illegality or some other substantial reason.  If they cannot show that the dismissal was for one of these permitted reasons, the dismissal will be unfair.

If your employer shows the dismissal is for one of the five reasons, they have overcome the first hurdle. However, showing the reason does not of itself make the dismissal fair. The Employment Tribunal still has to decide whether your employer acted reasonably in dismissing you for that reason.

In most cases, you need to have at least two years’ service to be able to submit a claim of unfair dismissal to an Employment Tribunal.  There are some exceptions to this general rule, for example in cases where the dismissal is for an automatically unfair reason.

Wrongful dismissal

This is a common law contractual claim for breach of contract, which may be brought by workers or employees, based solely on the fact that the dismissal by their employer was in breach of contract. This breach of contract claim is known as the claim for ‘wrongful dismissal’.  Unlike unfair dismissal, fairness is not an issue with wrongful dismissal; the sole question is whether the terms of the contract, which can be express or implied, have been breached.  You will have a claim in damages if your employer, in dismissing you, breached the contract, thereby causing you a loss.

The following types of breach are often involved in claims for wrongful dismissal:

  • Breach of a notice term, whether express or implied
  • Breach of a contractual disciplinary or redundancy procedure
  • Termination of a fixed-term contract or a "specific task" contract before its expiry
How do I write a witness statement?

A witness statement is instrumental in Employment Tribunal proceedings.   It is important to cover all essential points in a claim/defence whilst making sure not to go into too much detail and avoid irrelevant or erroneous details.

We would recommend that events first be put into chronological order to ensure anyone reading the statement can understand the basis of the case easily.  Next, you will need to identify any issues in the case which need to be proven to be successful in your claim or defence.  To do this you would need to raise these points with links to any documents in the bundle which assist you in proving that issue/point.  It is important when drafting a witness statement to ensure that salient parts or comments of others are quoted and referenced.

How should I prepare a schedule of loss?

Schedules of Loss are really helpful documents which can be amended throughout the Tribunal process.  They need to accurately reflect the cost of the claim and so need to consider both past and future losses you incur.

The losses firstly need to cover any basic award which would be awarded in unfair dismissal cases. This is based solely on a statutory redundancy payment and will be capped at the weekly rate as set by the government.

Next, the schedule would cover any award for past and future financial losses which are a direct result of the dismissal, discrimination and/or breach of contract.  Any loss which has been mitigated would also need to be taken into account.  This would include any funds which have been earned during the period of time from the act being claimed and the Tribunal hearing date.

It is important to ensure that where a breach of the ACAS code of conduct is being claimed, an uplift of 25% of the losses claimed is included in the schedule.

How do I choose a good lawyer?

It is important when choosing an employment lawyer to consider who will be able to work in your best interests.  When deciding on a lawyer it is important that they have some experience with the type of claim you are bringing as well as fully being able to grasp your needs and requirements.

Being part of a team should factor in your considerations as well.  This will mean that there will always be someone to pick up your case when your lawyer is away from the office.  The bigger the team the better as there will be lots of back up.

It is important that any lawyer is able to empathise with you and understand your concerns.  This will enable them to work in your best interests and fully engage with you throughout the process.  It is also important that the lawyer you choose is able to understand the costs involved and is able to fully advise you on this.  Choosing a lawyer who is local to the Tribunal will also be useful in keeping costs down and ensures they will be there to fully support you throughout the hearing.

How do I identify the claims I have?

There are several claims which can be brought in an Employment Tribunal. These include unfair dismissal, discrimination, breach of contract and unlawful deductions from wages.

To have a claim for unfair dismissal you must first have accrued 2 years service with your employer.  Your employer will then be able to dismiss you if they have one of the five potentially fair reasons for doing so. They must follow a fair process in dismissal; if they have not done so and do not have a fair reason then you may have a claim for unfair dismissal.

To have a claim for discrimination you must first have a protected characteristic as outlined in the Equality Act 2010. There are nine protected characteristics and if you have one of these you are protected throughout your employment, even in the recruitment process, from being treated detrimentally because of this.  This can be direct or indirect treatment; if you have been subjected to detriment because of a protected characteristic then you may have a discrimination claim.

To be able to claim a breach of contract your employer must have fundamentally breached a term in your contract of employment.  This can be either an express or an implied term of the contract. There are several implied terms such as the term of mutual trust and confidence and there are several ways in which this can be breached.  If you feel that your employer has breached a term then you may have a discrimination claim however, there are several things you will be required to do to be successful in that claim.

In order to bring a claim for unlawful deduction from wages your employer must have deducted sums they were not entitled to from your pay.  This could be deducting money for extra holiday on termination for example.

Do I have to go to work when it snows?

This is an important question for many employees and one where the answer depends on your employer.

In some instances employers have an adverse weather and travel disruption policy which outlines what do in those types of situations.  Where your employer does not have a policy there are several factors which must come into consideration.

The first consideration is health and safety.  If you believe it to be dangerous to attempt to go into the workplace (e.g. a main road is closed) then your employer will not be able to unilaterally decide not to pay you.

Docking pay when you are not able to get into work can also be problematic if there is no contractual term to be relied upon.  You have the right not to suffer an unlawful deduction from wages and so your employer should discuss contingencies in the event that you are prevented from coming into work.  Possible contingencies include:

  • Travelling to a different office (if safe to do so)
  • Making up any lost time
  • Being allowed to work from home
  • Offering paid annual leave
  • Closing the workplace

Employers must make sure that if they implement any of the above they do so in accordance with the appropriate legislation and apply the same opportunities to all staff.

Are my restrictive covenants enforceable?

Restrictive covenants are terms used by employers to restrict or prevent employees from taking confidential information, customers or employees from a period of time after termination of employment.  This is to protect the goodwill of the business.

To be enforceable, the covenant must be:

  • Reasonable
  • Protecting a legitimate business interest (e.g. a trade connection or confidential information)
  • No wider than is necessary

Any covenant imposed by an employer must be documented expressly and express agreement by the employee is advisable.  Any clauses which are seen to be in restraint of trade will be void on interpretation in the courts. Each individual covenant for each employee will have to be viewed independently and in consideration on a case-by-case basis in order to establish if they are enforceable.

For more information on restrictive covenants, click here.

Am I a worker?

Employment status has been a very topical question for Employment Tribunals in recent months, with worker status being challenged, especially those self employed.  A person’s employment status is particularly important because certain rights only apply for employees and/or workers.

Workers include employees, but are defined as those ‘engaged under a contract of employment or any other contract in which the individual undertakes to do or perform work personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual’.

There are several factors to be considered to satisfy the above definition but, as outlined in recent case law, it is sometimes the case that those believed to be engaged as self employed contractors are, in reality, workers.  If you are found to be a worker rather than self-employed then you would be awarded with rights such as; the right to be paid national minimum wage, the right to paid annual leave, the right to rest breaks, protection when making a protected disclosure.

Can I take my LinkedIn profile with me when I leave my current job?

Unfortunately there is no specific case law on this and this does depend on how your profile was set up.  If your profile was set up by the company using your work email address it may be difficult for you to take the profile with you upon termination of your employment.  This would have to be specifically agreed by your employer.

They may also impose a contractual obligation on you to delete all connections made on behalf of the company and/or to give up rights to the profile on termination.   You would then have to seek a specific variation of contract in this regard.

If, however the profile was set by yourself with your own private email address, with your employer never gaining access or taking any control over the profile, then it may be possible for you to keep the profile.  Your employer may however require you to take down any information relating to the company on your profile upon termination and may require a change of profile photo if the photo you use is one which was taken by your employer.

Do I need to disclose spent convictions for a DBS check?

There are two ways in which an employer may seek disclosure on an employee’s criminal record history.  These are either voluntary disclosure or an official check through DBS.

The usual position for a spent conviction is that the person with the conviction is able to purport themselves as having a clean record.  There are however certain exceptions to this rule where a spent conviction must be shared.  A conviction will not be treated as spent in certain circumstances as outlined in legislation these are:

  • For an excepted occupation
  • To hold an excepted office
  • To join an excepted profession

There are over 70 professions which employers are permitted to ask about spent convictions for the purposes of recruitment and/or checks during employment.

If you are asked as to whether you have any spent convictions, you must be asked for the purposes of assessing your suitability for the occupation. At the time of asking, you must be informed that you are obliged to disclose spent convictions. DBS checks of a standard and enhanced nature will disclose both spent and unspent convictions and cautions. Enhanced checks, where relevant, will also disclose information held about the individual on statutory lists as well as relevant police information.

It is therefore worth checking the list of professions and occupations to see what requirements you have for disclosing spent convictions.

Do I need representation in a Tribunal?

It is possible for people bringing a claim in the Employment Tribunal to represent themselves.  However, you may find it useful to instruct representation for Tribunal hearings as, depending on the claim, some elements of the hearing can become technical.  If you do represent yourself and there are elements of the hearing you do not understand, the Tribunal judge should try to explain this to you as concisely as possible.

You may find the Tribunal daunting and having someone coherently represent you and put forward your arguments can be useful.  It may help if your employer has instructed a barrister or solicitor to have someone at the same level representing you.

It is not necessary to instruct anyone to represent you in a tribunal and not doing so would keep costs down.  If, however, you would like this to be dealt with through a solicitor and/or barrister then you are able to instruct one for any point or the whole of the tribunal process.

 

If you have a question that is not covered above, then you can contact the team on 023 8071 7717 or email employment@warnergoodman.co.uk

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