Employment Law for Law Centre Advisers by Lucy Twomey 10th October 2006
Introduction Employment law overview Troubleshooting Referral
Outline Are you advising an employee? Is the employee still in employment? Potential claims Checklist
Are you advising an employee?
Are you advising an employee? Different types of employment status: Employee, worker, self-employed, etc No single definitive test Key factors: 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 documents Written contract of employment Not obligatory Written statement of terms: s1 ERA 1996 Employer must provide Policies and employee handbook Not obligatory Check if incorporated into contract
Advising employees after employment has ended
Has employment ended? How? Employer Employee Fixed-term contract expires Dismissal Constructive dismissal or resignation? Dismissal for statutory claims
When the employee has ended their employment Resignation Employee chooses to end employment (NB TUPE 2006 exception) Constructive dismissal Employee forced to leave employment: employer s behaviour fundamental breach of contract
Advising employees after a dismissal Constructive dismissal Fixed-term contract expires Employer dismisses Dismissed employee Consider dismissal related claims Consider nondismissal 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 3 months High Court Employment Tribunal: 25,000 limit
Wrongful dismissal Examples 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?
Unfair dismissal Stage 1: Five potentially fair reasons 1. Capability 2. Conduct 3. Redundancy 4. Breach of statutory provision 5. Some other substantial reason Automatically unfair reasons
Unfair dismissal Stage 2: Was dismissal unfair? Band of reasonable responses test Size of employer Administrative resources Procedural defects Does reason justify dismissal?
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 closure Cessation or reduction in work at place of employment Cessation or reduction of work of a particular kind
Right to a redundancy payment Redundancy payment Based on age, length of service and pay Maximum 8,700 Offer of suitable employment Unreasonable refusal = loss of redundancy payment
Redundancy and unfair dismissal Unfair dismissal and redundancy situation Consultation/warning Fair selection Suitable alternative employment Special cases Collective redundancies of 20 or more employees Maternity 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 Letter with grounds for discipline/dismissal Step 2 Meeting Step 3 Appeal
Did the employer/employee follow the SDDP? Failure to comply Employer Employee Automatically unfair dismissal and increase in compensation up to 50% Decrease in compensation by up to 50%
Does the employee have a postemployment grievance? Grievance = grounds for a tribunal complaint 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
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 Letter setting out grievance Meeting Step 3 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 Employee Automatically unfair dismissal Employee barred from bringing tribunal claim 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? Overlap with grievance procedure? Are there grounds for constructive dismissal? Be careful! Constructive dismissal can be difficult to prove
Potential claims during or postemployment
Pay National Minimum Wage Unlawful deductions from pay: ERA 1996 Equal pay for men and women: EPA 1970
Discrimination Sex Race Disability Fixed-term employees Sexual orientation Part-time workers Religion Age: new in 2006
Sickness Statutory sick pay Check contractual entitlements Disability discrimination? Health and safety Contractual duty of care Civil duty of care Statutory duties HSWA 1974
Working Time 48 hour weekly limit Young workers Working time rules Rest breaks Night workers 4 weeks paid annual leave Protection against less favourable treatment/ detriment/ dismissal
Parental and carers rights Maternity and ante-natal care Paid leave Paternity Adoption Unpaid leave Parental leave Time off for dependants Right to request flexible working
Whistleblowing Employees and workers Protected disclosure and manner of disclosure? Good faith element?
Transfer of Undertakings Business sale or outsourcing change of service provider? Relevant transfer under TUPE Regs 2006? Employment transfers to new employer Transfer-related changes to contracts are void and dismissal may be automatically unfair
Industrial relations Trade union members and employee representatives Employment protection on grounds of status and activities Industrial action? Limited employment protection
Checklist Are you advising an employee? Dates, documents and details Is the employee still employed? Any dismissal related claims?
Checklist Any other potential claims? Compliance with statutory dispute resolution procedures? Time limits Referrals