Making Sense of Employment Law

Transcription

1 Making Sense of Employment Law Your guide to Employment Law from Gravitas HR 7A Basset Court, Loake Close, Grange Park, Northampton, NN4 5EZ

2 MAKING SENSE OF EMPLOYMENT LAW Thank you for downloading this Gravitas HR ebook. In this ebook we will be sharing our expert knowledge on Employment Law. If you like this ebook, and would like to get in touch please visit us online at: or call on Alternatively, connect with us on Twitter or on LinkedIn: Full contact details, and more about Gravitas HR can be found at the end of this ebook. 1 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

3 Table of Contents What is Employment Law?... 4 Key Concepts and Definitions... 5 ACAS... 5 The ACAS Code... 5 Employment Contract... 6 Statutory Notice... 7 "PILON"... 8 Garden Leave... 9 Umbrella Contract Restrictive Covenant Flexible Working TUPE Unauthorised Deduction from Wages Emergency Leave Time Off For Dependants "Disability" Whistleblowing Working Time "opt-out" Worker Part-time Worker Right to Be Accompanied Settlement Agreement Continuous Employment COT3 Agreement Harassment Grievance Disciplinary Gross Misconduct Dismissal Constructive Dismissal M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

4 Wrongful Dismissal Summary Dismissal Unfair Dismissal Introduction to Redundancy Redundancy: "Bumping" Collective Redundancy Redundancy: Suitable Alternative Employment Tribunals Employment Tribunal Early Conciliation ET1, ET Employment Tribunal Fees Employment Appeal Tribunal EAT Introduction To Discrimination Discrimination: Protected characteristics Discrimination: Direct Discrimination Discrimination: Indirect Discrimination About Gravitas HR Solutions M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

5 What is Employment Law? Employment law is there to protect both sides of the employment relationship and when used correctly it can protect and enhance your business. There s no doubt about it though, there are occasions where it can feel overly restrictive on you as the employer. At those times, when frustration and sometimes bewilderment, takes hold, what you really need is an expert in the field who talks your language. That expert is us. With extensive employment law experience, we can help protect you from unwitting errors and resolve sticky situations wherever they arise. We will also educate you so that you can protect yourself. 4 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

6 Key Concepts and Definitions ACAS This stands for Advisory Conciliation and Arbitration Service. ACAS provide information, advice, training and conciliation services for employers and employees to help prevent or resolve workplace problems. An ACAS conciliation officer is designated to attempt conciliation in all Employment Tribunal matters. The ACAS Code To give its full name "Code of Practice on Disciplinary and Grievance Procedures". This is a seriously important booklet that sets out how disciplinary and grievance matters should be dealt with in the workplace. It's important to note that it applies to an employer's management of performance and sickness as well as conduct M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

7 Employment Contract EVERY employment relationship is subject to an employment contract, even if there is nothing in writing. It may be difficult to establish what the terms of the contract are if it is not written down and there are several tests which Employment Tribunals will use to help them do this. Having a written contract of employment can drastically cut down uncertainty! 6 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

8 Statutory Notice An employee has a right to a minimum period of notice of termination of their employment. This is imposed on the contract of employment by the Employment Rights Act Employer and employee can't agree to exclude the minimum from the contract, although a longer period is fine. The minimum is one week for every complete year of employment, up to a maximum of M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

9 "PILON" An acronym for "payment in lieu of notice". This refers to the payment by an employer of a lump sum of the pay an employee would have received if they had worked out their contractual notice. A "PILON clause" is a provision in an employment contract allowing the employer to do this. An employee is NOT entitled to PILON as of right, only to work their notice out. 8 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

10 Garden Leave Where an employee is under notice (either due to their own resignation or dismissal by the employer), the employer may keep them away from the workplace during the notice period to protect the business and preserve client relationships. The employee stays employed & continues to receive their pay and benefits. Their employment ends at the end of the notice period. 9 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

11 Umbrella Contract This refers to the way in which the employment courts will consider linking a series of short periods of employment in order to grant someone a period of continuous employment. This can be significant where particular employment rights depend on a certain period of continuous employment, such as unfair dismissal. 10 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

12 Restrictive Covenant A promise by (usually) an employee to restrict their activities once they have left the employer's employment, usually for a number of months after employment ends. E.g. not to set up in competition, approach customers or poach staff. They are tricky to enforce as they are assumed to be unfair on the employee unless the employer passes certain tests. 11 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

13 Flexible Working Obviously this term covers all sorts of different ways of working, but when it is used in an employment law context it refers specifically to an employee's right to request a permanent variation to their working arrangements. There is no obligation on the employer to grant a request provided they consider the request reasonably and, if turning the request down, have a good business reason for doing so M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

14 TUPE TUPE acts to freeze employees' contracts of employment at the point a business or other work unit changes hands. The incoming employer has only limited options to change employees' terms and conditions. Most accumulated benefits (particularly related to length of service) carry over. Fact 1: TUPE" rhymes with Snoopy. No other pronunciation is acceptable if you wish to retain your credibility with those conversant in employment law matters. Fact 2: TUPE stands for "Transfer of Undertakings (Protection of Employment) Regulations Fact 3: TUPE protects employees (to an extent) where a business or other work unit changes hands. 13 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

15 Unauthorised Deduction from Wages An employer can't deduct money from a worker's wages unless they have written consent in advance of the deduction being made. This could be in the contract of employment OR an authorisation given for a particular deduction. Even if money is properly owning, deductions made without PRIOR authorisation can be reclaimed in the Employment Tribunal 14 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

16 Emergency Leave There is no such concept in employment law. There is a right to take unpaid time off to deal with an emergency involving a dependent (child, or adult who depends on an employee, whether or not they are a family member), but other types of domestic emergency (car breakdown, boiler trouble or similar) remain up to the employer to decide how they should be treated. 15 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

17 Time Off For Dependants Whilst there is no blanket entitlement to "emergency leave", employees are entitled to a reasonable amount of UNPAID time off to deal with an emergency involving a dependant. A dependant is a child, parent or other adult who relies on the employee to provide care or assistance. "Emergency" includes illness, injury or disrupted childcare. 16 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

18 "Disability" For the purposes of employment law, a person will be "disabled" if they meet the legal definition in the Equality Act It won't matter if they're receiving benefits or allowances from the DWP, have a "blue badge" or even if their doctor says they are disabled, it's all about the LEGAL definition. A disability can come from a physical OR mental impairment. 17 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

19 Whistleblowing A person who raises the alarm about wrongdoing in their organisation is commonly referred to as a "whistleblower". Such a person will have an employment tribunal claim if they are dismissed or treated badly for having done so. To get protection, the person must have told an appropriate person (usually the employer, rather than the media!) of the wrongdoing. 18 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

20 Working Time "opt-out" The Working Time Regulations impose a maximum average working week of 48 hours on most types of workers. It is possible for individuals to agree to disapply (opt out of) the limit. This can only be done by written agreement in advance. Whilst the worker cannot be obliged to opt-out, an opt-out is often routinely given to workers when they begin work. 19 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

21 Worker A person who provides personal services but who is not an employee may nevertheless have some employment rights, such as the right not to be discriminated against, the right to receive paid annual leave and the right to receive the National Minimum Wage 20 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

22 Part-time Worker Whether or not a person is classed as "part time" depends on what is regarded as full time in that organisation. If a full time working week is 50 hours, then a person working 37 hours a week would be "part time" even though a 37 hour week may well be "full time" in a different business. Part time workers have a right to be treated no less favourably than full timer. 21 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

23 Right to Be Accompanied A worker has a statutory right to be accompanied to disciplinary or grievance meetings by either a Trade Union Official or a fellow worker of the employer. The companion may confer with the employee but is not permitted to answer questions on the employee's behalf (unless the employer wishes to allow this). 22 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

24 Settlement Agreement A binding written agreement between an employer and an employee in which the employee gives up certain employment rights, usually in return for an amount of money. The employee must be advised by an independent advisor who meets certain criteria. Settlement Agreements were called Compromise Agreements before 29 July M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

25 Continuous Employment There are several employment entitlements which depend on employees having a certain period of unbroken employment with the employer. The most common are the right not to be unfairly dismissed (2 years) and the right to a redundancy payment (also 2 years). 24 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

26 COT3 Agreement If an employment dispute is resolved via ACAS (whether it is the subject of Employment Tribunal proceedings or could potentially be the subject of proceedings), the ACAS conciliator will record the binding terms of settlement on a form called COT3. 25 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

27 Harassment Harassment occurs when a person engages in some form of unwanted conduct related to a protected characteristic (or of a sexual nature) that has the purpose or effect of violating dignity or creating an unpleasant environment for another person. In an employment setting, both the harasser and the employer can be liable to the victim. 26 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

28 Grievance Grievances are concerns, problems or complaints that employees raise with their employers. Employers should consider the provisions of the ACAS Code of Practice on Disciplinary and Grievance Procedures (see page 5) which sets out how to deal fairly with such matters. 27 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

29 Disciplinary An employer can take formal disciplinary action against an employee if they have concerns about their work, conduct or absence. As with Grievances Employers should consider the provisions of the ACAS Code of Practice on Disciplinary and Grievance Procedures (see page 5) which sets out how to deal fairly with such matters. 28 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

30 Gross Misconduct This refers to a single act committed by an employee which is so serious as to justify terminating the employment relationship without giving them a chance to change or rectify their behaviour. Classic examples of gross misconduct will be theft, fraud or physical violence, but employers have some leeway to categorise other forms of behaviour as gross misconduct too. 29 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

31 Dismissal The dismissal ("sacking") of an employee can happen in just 3 ways: 1. An "actual" dismissal is where the employer ends the employment with or without notice. 2. A "constructive" dismissal is where the employee ends the employment but is entitled to treat it as a dismissal. 3. The expiry of a fixed term contract is also classed as a dismissal. 30 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

32 Constructive Dismissal A concept frequently misdescribed, so, allow us. Constructive dismissal is where an employee may resign from their employment and yet treat themselves as dismissed. They will only be able to do this if the employer has fundamentally breached their employment contract, i.e. by failing to pay them or significantly moving their place of work without consultation. 31 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

33 Wrongful Dismissal This is a dismissal by an employer WITHOUT notice, where proper notice should have been given. It may occur where the employer thinks it is entitled to dismiss without notice (because it considers that the employee has committed gross misconduct for example) but is unjustified in doing so. 32 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

34 Summary Dismissal A summary dismissal is the immediate dismissal of an employee without notice or payment in lieu of notice ( PILON ). An employer will only be justified in dismissing summarily if the employee has committed gross misconduct or another fundamental breach of their contract of employment. 33 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

35 Unfair Dismissal A dismissal will be unfair if it is not made for a fair reason and/or is not carried out in accordance with a fair procedure. A fair reason may be any of conduct, capability, redundancy, the illegality of the employment continuing, or another substantial reason justifying dismissal of the employee from their position. The requirements of a fair process will depend on the reason for the dismissal. 34 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

36 Introduction to Redundancy "Redundancy" is the correct label for 3 distinct scenarios which result in an employee's dismissal: 1. A business closes 2. A place of work closes 3. An employer's requirement for employees to carry out work of a particular kind ends or reduces. Number three can get VERY complicated. For the third scenario to apply, there doesn't have to be less work. Look back at the paragraph, and read it as if the emphasis were on the words "employer's requirement". Many years of employment court decisions have told us that the employer has a wide discretion to decide how many employees it "requires" to carry out work of a particular kind. 35 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

37 Redundancy: "Bumping" This refers to a situation where a (usually) relatively senior post is declared redundant, but the postholder is given another, existing, job with the employer. The employee holding the second job is the one who is dismissed by reason of redundancy. This is potentially acceptable within the definition of redundancy. 36 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

38 Collective Redundancy A "collective" redundancy is a situation which involves an employer proposing that 20 or more employees should be dismissed for a reason which doesn't relate to any individual. Typically it occurs where headcount is reducing but also includes employers changing the terms of employment of 20+ employees. Employers MUST consult! M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

39 Redundancy: Suitable Alternative Employment If in a redundancy situation an employer offers to a redundant employee an alternative post which is suitable for that employee and the employee unreasonably refuses that position, the employee may lose their right to a redundancy payment. Suitability will depend on an assessment of the terms and conditions of the new role and the circumstances of the employee in question. 38 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

40 Tribunals Employment Tribunal The Employment Tribunal ("ET") is the court that is designated to hear the majority of employment disputes. Formerly known as "Industrial Tribunals". ETs are intended to determine employment disputes without the formality and cost of the civil courts M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

41 Early Conciliation Since 6 May 2014, any individual who wishes to bring an Employment Tribunal claim must first submit details of their proposed claim to ACAS. ACAS will offer conciliation services to try to promote a resolution within 4-6 weeks, after which if no settlement is reached the claim may proceed into the Tribunal system. 40 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

42 ET1, ET3 These are the technical names for the employee s or worker s claim form (ET1) and the employer s defence (ET3) in an Employment Tribunal matter. The ET2 is the claim notification (which is really just a letter stating that a claim has been presented to the Tribunal) sent to the employer with a copy of the ET1. 41 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

43 Employment Tribunal Fees Since 29 July 2013, any person who wishes to bring a claim in the Employment Tribunal must pay a fee or apply for a means tested exemption (called remission ) from the fee. A fee is payable on issue of the claim and a further fee is payable before the claim can proceed to a final hearing. 42 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

44 Employment Appeal Tribunal EAT The Employment Appeal Tribunal is the court of appeal from an Employment Tribunal decision. It is only possible to appeal an Employment Tribunal decision to the EAT if there is an allegation of an error of law by the Employment Tribunal or the decision was one that no reasonable Tribunal could have reached on the evidence before it. 43 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

45 Introduction To Discrimination This is a tricky one, because the legal concept of discrimination divides into 2 sub-categories, called direct discrimination and indirect discrimination. In all cases, discrimination occurs where a person is disadvantaged related to a protected characteristic. 44 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

46 Discrimination: Protected characteristics There are nine personal characteristics relevant to discrimination in employment. These are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation. Disadvantage related to any of these may amount to discrimination. 45 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

47 Discrimination: Direct Discrimination In an employment law context, direct discrimination occurs where, because of a protected characteristic, the employer treats a person less favourably that it treats or would treat others. You can see that this therefore happens when people are treated differently and disadvantage results. 46 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

48 Discrimination: Indirect Discrimination In contrast to direct discrimination, indirect discrimination occurs where the employer applies an apparently neutral provision or practice to everyone, but this places people of a certain protected characteristic at a disadvantage. So whilst treating everyone equally may protect against direct discrimination, a different approach is needed to avoid indirect discrimination. 47 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k

49 About Gravitas HR Solutions Established in 2012, Gravitas HR is owned and managed by its three directors. Clients benefit from over 50 years combined experience gained in a variety of blue chip organisations and law firms. Professionally qualified, our expertise covers all areas of HR management, employment law and reward management. We build lasting relationships built on mutual trust and will work in partnership with you to get to know and understand your business. We will work with you to design and deliver HR solutions which are bespoke to your organisation. Many of our clients refer to us as their Virtual HR Department, enjoying the benefits and flexibility of having highly qualified HR professionals on their team, without carrying additional headcount. Dawn Exley Mark Exley Northampton Office Gravitas HR Solutions 7A Basset Court Loake Close Grange Park Northampton NN4 5EZ 48 M a k i n g S e n s e O f E m p l o y m e n t L a w g r a v i t a s h r. c o. u k