Employment Law for Law Centre Advisers€¦ · Consultation/warning Fair selection Suitable...
Transcript of Employment Law for Law Centre Advisers€¦ · Consultation/warning Fair selection Suitable...
Employment Law for Law Centre Advisers
byLucy Twomey
10th October 2006
Introduction
Employment law overview
Troubleshooting
Referral
Outline
Are you advising an employee?
Potential claims
Checklist
Is the employee still in employment?
Are you advising an
employee?
Are you advising an employee?
Different types of employment status:
No single definitive test
Key factors:
Employee, worker, self-employed, etc
Control, mutual obligation, personal service, benefits, equipment, PAYE, degree of financial risk…
Are you advising an employee?
Ignore the label on the documents
Look at the reality of the working relationship
Agency workers: various status possible
Employee documentsWritten contract of employment
Written statement of terms: s1 ERA 1996
Policies and employee handbook
Not obligatory
Employer must provide
Check if incorporated into contract
Not obligatory
Advising employees after
employment has ended
Has employment ended?
Employer
Dismissal
Fixed-term contract expires
Dismissal for statutory claims
Employee
Constructive dismissal or resignation?
How?
When the employee has ended their employment…
Resignation
Constructive dismissal
Employee chooses to end employment
(NB TUPE 2006 exception)
Employee forced to leave employment:
employer’s behaviour fundamental breach of contract
Advising employees after a dismissal
Dismissed employee
Fixed-term contract expires
Employer dismissesConstructive
dismissal
Consider dismissal
related claims
Consider non-dismissal
related claims
Dismissal-related claims
Wrongful dismissal Breach of contract claim
Unfair dismissal Statutory claim: ERA 1996
Right to a statutory redundancy payment
Statutory claim: ERA 1996
Wrongful dismissal
Only employees
No minimum service
Time limits
6 years
High Court
3 months
Employment Tribunal: £25,000 limit
Wrongful dismissalExamples
Employer in breach of a contractual
disciplinary procedure
Employer in breach of implied term of mutual trust and confidence e.g. bullying
Constructive dismissal
Wrongful dismissal
Remedy: damages
Wrongful dismissal
Failure to give notice of termination or insufficient notice by employer
Breach of contract
Remedy: damages, remuneration during the notice period
A word about notice
Statutory minimum notice
Contractual notice
Exceptions to wrongful dismissal for breach of notice term
PILON clause Summary dismissal: gross misconduct
Unfair dismissal
Only employees
1 year minimum service (some exceptions)
Age limits?
3 month time limit: employment tribunal claim
Unfair dismissal
Two stage test
Potentially fair reason for dismissal
Was dismissal unfair?
1. Capability2. Conduct3. Redundancy4. Breach of statutory provision5. Some other substantial reason
Unfair dismissal
Stage 1: Five potentially fair reasons
Automatically unfair reasons
Band of reasonable responses testSize of employerAdministrative resourcesProcedural defectsDoes reason justify dismissal?
Unfair dismissal
Stage 2: Was dismissal unfair?
Unfair dismissal
Remedies for unfair dismissal
Order for reinstatement/re-engagement
Compensation (basic award up to £8,700 and compensatory award up to £58,400)
No upper limit in some cases
Right to a redundancy payment
Only employees
2 years’ minimum service
Age limits?
6 month time limit for an employment tribunal claim
Right to a redundancy payment
Statutory definition
Main redundancy situations:
Business closureCessation or reduction in work at place of employmentCessation or reduction of work of a particular kind
Right to a redundancy payment
Redundancy paymentBased on age, length of service and payMaximum £8,700
Offer of suitable employment
Unreasonable refusal = loss of redundancy payment
Redundancy and unfair dismissal
Unfair dismissal and redundancy situation
Consultation/warningFair selectionSuitable alternative employment
Special cases
Collective redundancies of 20 or more employeesMaternity cases
Did the employer follow an SDDP?
Statutory disciplinary and dismissal procedure: EA 2002
Dismissal includes redundancy and expiry of a fixed term
Some exceptions eg: constructive dismissal and harassment
Did the employer follow an SDDP?
Step 1
Step 2
Step 3
Letter with grounds for discipline/dismissal
Meeting
Appeal
Did the employer/employee follow the SDDP?
Failure to comply
Automatically unfair dismissal and increase in compensation up to 50%
Decrease in compensation by up to
50%
Employer Employee
Does the employee have a post-employment grievance?
Grievance NOT related to certain types of disciplinary action or dismissal eg. Refusal to provide a reference
Employee may need to follow a statutory grievance procedure (SGP): EA 2002
Grievance = grounds for a tribunal complaint
Advising employees who are still employed
Does the employee have a grievance?
Grievance = grounds for tribunal complaint?
Employee must follow an SGP
Some exceptions e.g. Grievance relates to certain types of disciplinary action
Does the employer’s grievance procedure apply?
Has the employee followed an SGP?
Step 1
Step 2
Step 3
Letter setting out grievance
Meeting
Appeal
Bringing a tribunal claim?
28 day waiting period after Step 1 otherwise claim barred
Have the employee/employer followed the SGP?
Failure to comply
Employer
Automatically unfair dismissal
Employee barred from bringing tribunal claim
Employee
Compensation increase by up to 50%
Compensation decrease by up to 50%
Is the employee being disciplined?
Some types of discipline = SDDP under EA 2002
Is the employee being treated unfairly?
Are there grounds for constructive dismissal?
Be careful! Constructive dismissal can be difficult to prove
Overlap with grievance procedure?
Potential claims during or post-employment
Pay
Unlawful deductions from pay: ERA 1996
National Minimum Wage
Equal pay for men and women: EPA 1970
DiscriminationSex
Race
Fixed-term employees
Sexual orientation
Religion
Age: new in 2006
Disability
Part-time workers
Sickness
Health and safety
Statutory sick pay
Contractual duty of care
Civil duty of care
Statutory duties HSWA 1974
Check contractual entitlements
Disability discrimination?
Working Time
Protection against less favourable treatment/ detriment/ dismissal
48 hour weekly limit
Rest breaks
Night workers4 weeks
paid annual leave
Young workers
Working time rules
Parental and carers rights
Paid leave
Unpaid leave
Maternity and ante-natal care
Parental leave
Paternity
Adoption
Time off for dependants
Right to request flexible working
Whistleblowing
Employees and workers
Good faith element?
Protected disclosure and manner of disclosure?
Transfer of Undertakings
Employment transfers to new employer
Business sale or outsourcing change of service provider?
Relevant transfer under TUPE Regs 2006?
Transfer-related changes to contracts are void and dismissal may be automatically unfair
Industrial relations
Employment protection on grounds of status and activities
Trade union members and employee representatives
Industrial action? Limited employment protection
Checklist
Are you advising an employee?
Is the employee still employed?
Dates, documents and details
Any dismissal related claims?
Checklist
Any other potential claims?
Time limits
Compliance with statutory dispute resolution procedures?
Referrals