Employment Law FAQs

Unfair Dismissal

What constitutes unfair dismissal?

In dismissing any employee, an employer must show the reason or reasons for dismissal fall under one of the categories set out in the Employment Rights Act 1996:

  • The employee lacked capability or qualifications, in relation to the work they were employed to do.
  • The dismissal was a result of the conduct of the employee E.G Dishonesty, poor attendance, failure to follow instructions, and which can amount to gross misconduct.
  • There was genuine redundancy,
  • The continuation of employment would contravene a statute E.G you are required to drive within your employment but you are banned due to speeding.
  • Another substantial reason, which does not fall within the above categories, for this each case will be determined on its facts.

Unless an employer can prove either one or more or the above, the termination of employment will be deemed as unfair. Even if your employer can prove either one or more of the above conditions, it will be up to the employment tribunal to decide ‘in accordance with equity and the substantial merits of the case’ whether the dismissal was fair or unfair. The tribunal will decide whether the dismissal was in the ‘range of ‘reasonable responses’ of that employer.’

Your employer may have had grounds to dismiss you because of your performance or conduct, but that does not mean they had to take this step. If the tribunal decides that no ‘reasonable employer’ would have dismissed an employee in the same circumstances, then the dismissal will still be considered unfair.

Your employer cannot rely on new matter after your dismissal. The test is whether the dismissal was fair on the basis of what your employer knew at the time.

What if my employer has not followed the correct process?

Should your employer have a justified reason for dismissing you, the dismissal will still be unfair if they have not followed the correct process. E.G They have not followed the appropriate consultation process in a redundancy situation. For dismissals involving misconduct, or performance, the process the employer should follow is largely based on the ACAS Code of Practice.

What is the qualifying employment period for a claim?

You must have been employed, continuously, for a period no less than 23 months and 3 weeks without a break. There is an exception where the continuous period does not apply, so you can bring a claim for unfair dismissal without having worked for any minimum time, this is called ‘automatic unfair dismissal.’

What is automatic unfair dismissal?

A dismissal is automatically unfair, with no qualifying period of service necessary in exceptional circumstances which include:

  • If it was connected with a health and safety reason you became aware of;
  • Where you have asserted a statutory employment right E.G paternity or maternity leave.
  • Whistleblowing
  • Participating in trade union activities

Constructive Dismissal

What is constructive dismissal?

Constructive dismissal occurs where your employer has fundamentally breached your contract of employment in some way. You would need to have resigned from your employment as a result of the breach, and not be deemed to have accepted the breach in any way.

If you delay in taking steps to constructive dismissal, this may amount to an acceptance of the employer’s breach and an affirmation of your contract as a result a claim for constructive dismissal would be difficult to make.

 

Examples of a fundamental breach of employment:

  • Forced cut in salary
  • Forced change in role or duties without reasonable explanation
  • Employers attitude seriously unreasonable resulting in inability to work
  • Suspension without good reason
  • Unsafe work environment
  • Imposing an unreasonable or unfair disciplinary process

Should I work my notice in a claim for constructive dismissal?

A claim for constructive dismissal will not be affected by resigning with or without a notice period. There are some exceptional circumstances which could affect the claim, these will depend on the facts of the case but are usually found where it is so difficult to continue a working relationship with the employer, working a notice period would be considered odd.

Do I need to state the reason for departure in my resignation letter?

Although there is no requirement, it is best to state the reason for departure. This is to avoid the tribunal inferring that the reason for leaving was not the employers conduct – which is the basis of a constructive dismissal.

However, if the reason for departure is extremely embarrassing and you do not wish to state – a tribunal may understand this, it will depend on the facts of the case.

There should be some written evidence of your employers conduct prior to resignation, which is why a grievance is the appropriate way to proceed before you resign.

Equal Pay

What are my rights to equal pay?

What if you find that there is a difference between your pay and a male in the same position, or vice versa?

Men and women in the same position, doing equal work of equal value are entitled to equal pay. This includes bonuses as well as salaries.

An employer will have to show there is a genuine reason for any difference in pay which is no way related to the sex of an individual.

You are also entitled to be informed of the methods of pay and bonus calculations.

How do I make a claim for equal pay?

If an issue cannot be solved informally, the first step will be to make a formal grievance which clearly sets out your claim. You will need to choose a ‘comparator,’ this is someone of different sex with whom you wish to claim equal pay. The ‘comparator’ must be employed by your employer. The employer will then be required to investigate your grievance and call a meeting to decide whether or not a decision is upheld.

If the grievance route does not resolve matters, you can bring a claim for direct discrimination under the Equality Act 2010. This claim will need to be made within 3 months of the last claim of discrimination.

 

A claim for equal pay can also be lodged under the Equality Act in an employment tribunal. This can be made while you are working or up to 6 months afterwards. Recent case law has shown if this time limit has passed, you can still bring a claim in court which carries the much longer time restriction of 6 years.

If you are considering making a claim, be sure to keep copies of all relevant correspondence with your employer, including emails and notes of meetings – this could be strong evidence.

Flexible Working

What is flexible working?

A difference in your working pattern which can be done through, working from home, part time working or job sharing.

What are my rights to flexible working?

All employees with a minimum of 26 weeks’ service can submit a flexible working request.

The right is strictly to request flexible working from your employer not to be given flexible working.

How do I make the request?

Making a request follows statutory procedure which is set out in the legislation. The request must be in writing and set out:

  • The date of the application
  • Change of working pattern or conditions you are seeking
  • When that change is desired
  • What impact you think the suggested change would have on your employer
  • How this impact could be dealt with
  • That it is a statutory request
  • Whether a previous application for flexible working has been made – if so, the date.

How must my employer deal with a request?

Employers are only required to deal with applications that have followed the correct statutory process.

They are required to deal with all requests in a ‘reasonable manner.’ An employee must be informed of the decision within 3 months of the request unless there are exceptional circumstances.

‘Reasonable manner’ means the employer must hold a meeting with you to discuss the request in a timely manner, having carefully considered the request, they should then communicate the decision to you. The communication does not need to take the form of a meeting, it can be by phone. The employer must give clear, business reasons for any rejections.

The same process applies to those requesting flexible working after maternity leave.

Where there are competing requests, it is suggested that random selection is the best approach.

If the request is approved, it is a permanent change to the employee’s terms and conditions, with no right to return to the original terms in the future, unless agreed upon.

On what grounds can an employer reject a request?

  • An inability to reorganise work on current staff
  • Inability to recruit additional staff
  • Negative impact on performance
  • Insufficiency of work in those periods an employee proposes to work
  • Negative impact on quality
  • Burden of additional costs

Can an employer’s rejection be challenged?

There is no obligation to provide an employee with an appeal, although it is considered good practice. Their decision to refuse is a subjective one, however, if it is based on incorrect facts, it can be challenged by an application to the employment tribunal.

Gross Misconduct

What is gross misconduct?

Gross misconduct can be any conduct which constitutes a serious breach of your employment. Examples include:

  • Theft
  • Dishonesty
  • Violence at work
  • Intoxication at work from drinks or drugs
  • Fighting or other physical abuse
  • Continual refusal to obey instructions from management
  • Serious breach of health and safety rules

It is usually included within a contract of employment, what amounts to gross misconduct, although this isn’t necessary for action to be taken.

What process must my employer follow?

The approved process is set out in ACAS Code of Practice. If your employer does not follow this process and you lose your job, this could amount to unfair dismissal.

The expected process is as follows:

  • Properly investigate the matter
  • Inform you of the issues in writing
  • Give you the opportunity to respond
  • Conduct a disciplinary hearing or meeting with you
  • Inform you of a decision in writing
  • Provide you with the right to appeal

If you are facing an allegation of gross misconduct, you may face a suspension pending an investigation, this will be given on full pay. The suspension must only be for the period it takes to complete a full investigation. If the suspension is too long, it may be that it is no longer credible to return to work E.G where you manage accounts for clients. This breach of employment could give rise to a possible claim for constructive dismissal.

There is no requirement on employers to dismiss all employees who have committed similar gross misconduct, each case will be taken on its own circumstances.

What if my employer can’t prove gross misconduct?

There does not need to be absolute proof. An employer can still take disciplinary action for gross misconduct if:

There was genuine belief in your guilt for the misconduct in question, the belief was reasonable and the matter was properly investigated.

How will the employment tribunal decide whether gross misconduct was a fair reason for dismissal?

 Factors considered by the employment tribunal will be:

  • Whether your employer had genuine belief in your guilt
  • Was this belief reasonable?
  • Was the matter properly investigated?
  • Was there a disciplinary meeting held where you could state your case?
  • Were you given sufficient notice of the meeting?
  • Were you given notice of your right to be accompanied by a work colleague or trade union official?
  • Were you provided with supporting documents/witness statements in advance of the meeting?
  • Did you have adequate opportunity to state your case?
  • Was the disciplinary hearing chaired by an impartial person?
  • Were you given the right to appeal the decision?
  • Did your employer follow its own policy?
  • Has there been consistency in treatment of previous offences with other staff?

The first three are the most important and together are known as the “Burchell Test” –

“Whether your employer genuinely believed, and had reasonable grounds for believing, that you were guilty of the misconduct at the time, and at the time it held that belief, had carried out as much investigation as was reasonable in the circumstances.”

The Employment Tribunal must also be satisfied that the employer has followed the process set out in ACAS Code of Practice and that it acted within a range of reasonable responses, in treating misconduct as a reason to dismiss you.

Can a series of minor breaches amount to gross misconduct, even though no one breach does?

In short, yes. It is possible for the tribunal to determine that a series of acts demonstrating a ‘pattern of conduct’ to be of sufficient seriousness to amount to gross misconduct.

Should you appeal a dismissal?

You do not have to lodge an appeal. However, if you genuinely wish to continue working for your employer and you feel you have been wronged it is an option. It also carries the benefit that it is a paper-trial setting out the issues so it is clear you have pursued all avenues for redress. This will add weight to any later tribunal claims.

It can also be beneficial to lodge an appeal as it is a good means of finding a settlement with your employer if you have decided you want to leave.

 

However, if you have no intention to stay with your employer – common, as a result of the trust and confidence lost due to proceedings – then you must decide whether an appeal is worth lodging. There is a small chance the appeal will be upheld and it may harm your chances of winning a subsequent tribunal claim.

It does need to be considered that not following the appeals process can reduce any subsequent tribunal award by 25% on this basis. If however, you can show a good reason for not appealing E.G the relationship was beyond repair, then little to no reduction may be made.

Holidays

What is my holiday entitlement?

You are entitled to a minimum of 28 days including bank holidays (5.6 weeks per year), although your employment contract may offer you more. You must take holiday at a time convenient for your employer.

You cannot decide to take payment instead of holiday unless the employment has terminated, in which case you are entitled to any accrued but not taken holiday for that year.

 

Part-time workers are also entitled to 5.6 weeks per year and will have their allowance calculated on a pro rata basis depending on how much they work.

Online calculator for working out Holiday entitlement linked here:

https://www.gov.uk/calculate-your-holiday-entitlement

You must give at least twice as long as you are planning to take in notice of the holiday.

Will, I be paid for bank holidays?

Bank Holidays are usually included in your statutory holiday entitlement, there is no statutory right to be paid for bank holidays on top of this entitlement. However, this will depend on your employment contract.

Can I take bank holidays off if I want to? 

This depends on your contract of employment.

Am I entitled to be paid for Holiday I haven’t taken?

There is no automatic right to be paid for holiday not taken. Workers are only entitled to a payment in lieu of unused holiday on termination of their employment contract.

Is my employer able to deduct overpaid holiday pay from my final salary payment?

Where you have taken more than the annual leave to which you would otherwise have been entitled to from the beginning of the holiday year to your finish date, your employer can take excess holiday pay from your final salary. This is only if there is a relevant agreement to this effect E.G written into your contract of employment.

Can my employer cancel a pre-booked holiday?

This is possible; however, the notice must be the same length as the period of leave to be cancelled. The employer cannot cancel annual leave if it means as a result you will not be able to take your full statutory annual leave entitlement.

If your employer cancels your leave without clear business reason and compensation, which results in your inability to go on a booked holiday and you suffering financial loss, you may have a claim for constructive dismissal.

Non-payment of salary

How can I make a claim for non-payment of salary?

 Although a one-off failure to pay a month’s salary would constitute breach of contract of employment, it is not usually serious enough to amount to resignation and a claim for constructive dismissal. However, a persistent failure to pay would certainly enable a claim for constructive dismissal.

Alternatively, a speedier remedy would be a claim for ‘unlawful deductions from wages’ this can also be better as you can remain employed while making the claim. The claim must be made within 3 months of the ‘deductions.’

Limits on making a claim?

When making a claim for backdated deductions, including holiday pay, the period that will cover is a maximum of 2 years.

Can my employer make a deduction of salary if I am not at work?

Generally, it is considered, if you have no good reason for not being at work, you will not be paid for that time. Even with a good reason, there is no automatic entitlement to be paid, this must be agreed and contained within the employment contract. This does not apply to periods of sickness.

Under what conditions can my employer make lawful deductions from my salary?

There are 3 conditions:

  • Required or authorised by legislation E.G NI deductions
  • Authorised by your contract of employment – provided you have been given a written copy of the terms
  • You consented – in writing- to the deduction before it was made.

There are some exceptions which allow employers to recover payments from your salary E.G for earlier overpayment or expenses.

Notice

What is the minimum notice period I am entitled to?

There is a statutory minimum of 1 weeks’ notice for every year worked, up to a maximum of 12 weeks regardless of what your contract stipulates. The statutory notice begins after 1 month of service, before that you can be dismissed without any notice. Often your contract of employment will provide for a longer notice period, however, it cannot be less.

What is the minimum notice period I must give my employer?

The contract of employment will usually be specific. If the contract is silent, the statutory minimum for notice after 1 month is 1 week.

What is garden leave?

This is when you are asked not to attend work but you are still paid. During this time, you are expected not to commence any employment or new work during your notice. The terms of your previous employment still apply, primarily confidentiality. Your employer is able to ask you to return to work during this period should they require. During garden leave you are entitled to full benefits including any bonus.

Your employer is able to request you do not contact any clients, suppliers or company contacts without the employer’s express consent. You may be prohibited from starting a new employment.

This is especially common for senior executives and allows the employer to protect themselves.

What is PILON?

‘Pay in lieu of notice’ occurs where you are paid for your notice without having to work it. A PILON clause allows your employer to terminate your contract immediately and pay in lieu of notice. In such cases, payment will be simply of base salary, no benefits.

A PILON clause must be present in the employment contract, otherwise an attempt of this will constitute a breach of contract.

Performance Issues

How easy is it for an employer to dismiss based on poor performance?

Poor work performance can trigger dismissal. However, it essential that in such cases, an employer follows a proper dismissal process. If they fail to do so, even if they have grounds to dismiss based on performance, the dismissal may be considered unfair.

Your employer must follow ACAS Code of Practice, if they have concerns about your performance they must inform you of this. They must give you an opportunity to improve, as well as providing support and assistance in this. You must be provided with a number of warnings, verbal, one written and final. Any objectives must be achievable and communicated.

If poor performance is not a genuine issue and is simply being used by an employer, process will only be one part of the issue, the other, the very grounds.

What is a performance improvement plan?

Often known as a PIP, is used by employers where it is being alleged an employee is performing poorly. It will be in writing for an employee to read and accept and is usually coupled with a formal disciplinary process.

The PIP should:

  • Clearly and objectively set out failures
  • Set out improvement expected with clear objectives
  • State whether any support or training will be provided
  • Provide for the timescales and frequency of reviews
  • Make clear what the sanctions will be if you fail to improve

Do not sign a PIP you do not agree with. It is difficult to argue with an unfair PIP if you have already agreed to it. It is a good idea to take early legal advice here.

What if I have a disability that affects my work performance?

In this case your employer must consider the protection afforded to you by the Equality Act 2010, otherwise you can claim under disability discrimination.

If Disability is seen to be a factor in poor performance then any disciplinary procedures carried out will have to be deemed a proportionate means of achieving a legitimate aim. An employer will have to provide a good reason for rejecting alternatives to a disciplinary procedure in relation to poor performance where a disability is involved. Your employer may be under a duty to consider what reasonable adjustments could be made to improve your performance where a disability is involved before beginning any disciplinary process.

Can I raise a grievance during a performance disciplinary process?

 Absolutely, however if you do raise a grievance during this time, the performance disciplinary process may be temporarily suspended. However, if the two issues are related, your employer has the right to deal with both at the same time.

Can my employer offer a Settlement Agreement instead of a performance process?

This is often a very beneficial way to proceed for both parties as often at the point of performance process, the relationship has become strained. A settlement agreement can either be offered by your employer or negotiated by you or a professional advisor.

What claim would I have if my employer doesn’t follow a fair performance process?

This could be a claim for unfair dismissal. If for example, the bar set for improvement is unrealistic in the timescale given or outside of the bounds of your usual job role, the process will not be considered to have been followed.

There is also the possibility of claiming for constructive dismissal if you feel that as a result you had no choice but to resign, however in this situation you would have to lodge a grievance first.

What constitutes an unfair PIP?

  • Line manager relationship – this can be a clue for the real reason for the PIP, such relationships are very important. It is often the case that it can come down to tension in the workplace as a result of personality clashes.
  • PIP terms – unrealistic targets or timeframes can suggest you are being ‘set up to fail.’
  • Long period of service – if the PIP is surprising as there has been a long history of good performance, backed by appraisals and bonuses.
  • Team – if you are part of a team with no direct responsibility for the tasks, yet you have been specifically chosen for a PIP, this could be a clue.

Redundancy Rights

When will redundancy occur?

It may arise for a number of reasons:

  • The employer’s business closes
  • Surplus of labour and your role is no longer required
  • The employer moves their place of business

What is the maximum statutory redundancy payment?

From April 2018, the maximum is £15,240.

Can I challenge a redundancy selection pool?

Although this has historically not been easy, case law has ruled that an employer must be able to show that it has genuinely applied itself to appropriate selection for the pool and must consult with affected employees. A failure of this process could give rise to a claim for unfair dismissal.

Who should be included in a redundancy selection pool?

There is a degree of flexibility in this decision, however an employer must act reasonably. Tribunals can scrutinise carefully whether the employer has ‘genuinely applied itself to appropriate selection.’ If this requirement has been met a decision will be difficult to challenge but not impossible.

Reasonable factors in creating a selection pool:

  • Employees in the pool undertake similar roles, although not necessarily identical. Should be included if these roles take place in different parts of the business.
  • Employees in similar roles at other sites should be included unless there is good reason not to do so.
  • Is the work carried out by the employees interchangeable? if so, they should be included.
  • Those working for associated employers should be included.

Failure to include those in the categories above could result in a pool being held too restrictive.

There is no requirement for selection pools where unique roles are concerned or where the business closes as a whole.

What if I reject a suitable alternative role?

If a suitable alternative role is offered to you and you reject it, you may forfeit your right to a redundancy payment. If suitable employment is offered, it should contain a trial period to assess suitability and capability. The suitability should be tested subjectively, whether it is suitable for you specifically. There are circumstances where it would be reasonable for you to reject a new offer:

  • The circumstances of the new offer – has sufficient time been given?
  • The duration of the new offer
  • Employees personal circumstances, particularly if the new role involves relocation or travel costs

What is the time limit for making a redundancy payment claim?

 It is 6 months for a statutory redundancy payment from the date of employment termination. It is 6 years for a contractual redundancy claim.

Who should be included in a redundancy selection pool?

There is a degree of flexibility in this decision, however an employer must act reasonably. Tribunals can scrutinise carefully whether the employer has ‘genuinely applied itself to appropriate selection.’ If this requirement has been met a decision will be difficult to challenge but not impossible.

Reasonable factors in creating a selection pool:

  • Employees in the pool undertake similar roles, although not necessarily identical. Should be included if these roles take place in different parts of the business.
  • Employees in similar roles at other sites should be included unless there is good reason not to do so.
  • Is the work carried out by the employees interchangeable? if so, they should be included.
  • Those working for associated employers should be included.

Failure to include those in the categories above could result in a pool being held too restrictive.

There is no requirement for selection pools where unique roles are concerned or where the business closes as a whole.

What if I reject a suitable alternative role?

If a suitable alternative role is offered to you and you reject it, you may forfeit your right to a redundancy payment. If suitable employment is offered, it should contain a trial period to assess suitability and capability. The suitability should be tested subjectively, whether it is suitable for you specifically. There are circumstances where it would be reasonable for you to reject a new offer:

  • The circumstances of the new offer – has sufficient time been given?
  • The duration of the new offer
  • Employees personal circumstances, particularly if the new role involves relocation or travel costs

What is the time limit for making a redundancy payment claim?

 It is 6 months for a statutory redundancy payment from the date of employment termination. It is 6 years for a contractual redundancy claim.

Can I still be made redundant while pregnant or on maternity leave?

Yes, as long as the reason for the redundancy is not connected to your pregnancy or maternity leave.

References

Does my employer have to provide a reference?

An employer is not obliged to do so. However, they may be bound to do so, if it was agreed in a settlement agreement on the termination of your employment.

Can my employer give me a bad reference?

Your employer can give any reference that they believe to be accurate and true at the time and have reasonable grounds for that belief. Any information given must not be misleading to a future employer.

If you feel as if you have been given a bad reference, first obtain a copy. If this is refused, this can be done under the Data Protection Act. Once you have a copy, if you find the reference to be untrue, the first step would be communication with the employer.

If this fails, there are a number of options:

Negligence – If as a result of the inaccurate reference you suffer financial or economic loss, you may have a claim for negligent misstatement in the County Court. You will have to show detrimental impact on your future employment prospects and that your previous employer failed to exercise reasonable care in the preparation of the statement.

Discrimination – If the reason for the poor reference is because you fall under one of the protected characteristics under the Equality Act 2010 your employer may be acting unfairly and you may have a claim in the employment tribunal for discrimination.

Whistleblowing

Can my employer give me a bad reference?

Your employer can give any reference that they believe to be accurate and true at the time and have reasonable grounds for that belief. Any information given must not be misleading to a future employer.

If you feel as if you have been given a bad reference, first obtain a copy. If this is refused, this can be done under the Data Protection Act. Once you have a copy, if you find the reference to be untrue, the first step would be communication with the employer.

If this fails, there are a number of options:

Negligence – If as a result of the inaccurate reference you suffer financial or economic loss, you may have a claim for negligent misstatement in the County Court. You will have to show detrimental impact on your future employment prospects and that your previous employer failed to exercise reasonable care in the preparation of the statement.

Discrimination – If the reason for the poor reference is because you fall under one of the protected characteristics under the Equality Act 2010 your employer may be acting unfairly and you may have a claim in the employment tribunal for discrimination.

What protection do I have?

If you blow the whistle, you have protection from being unfairly dismissed. You will also have protection if you are victimised after making your disclosure. There are three important elements in order to claim protection:

  • That you made a qualifying disclosure and had a reasonable belief to do so
  • That you followed the correct disclosure process
  • That you were dismissed or suffered a detriment as a result of making disclosure

What is a protected disclosure?

In order to qualify for protection, you must have reasonable belief that a wrongdoing has occurred, or may occur and is not in the public interest. To qualify it must relate to certain matters:

  • A breach of legal obligation
  • A criminal offence
  • A danger to the health and safety of the individual
  • A miscarriage of justice
  • That information to any of the above, has been or is likely to have been concealed

Who does the law protect?

As an employee, you are protected but also as a worker which includes, freelancers, agency staff and directors.

What is whistleblowing?

This occurs where you bring information of wrongdoing to the attention of your employer or relevant organisation.

There are many myths circulating the topic of Divorce Law. We can answer any queries you may have relating to this area of law. We offer free 20-minute appointments which you can book via telephone or our contact form, where one of our experienced fee earners will take time to listen to your concerns and advise you on the best course of action in your circumstances.