Employment law and human resource matters are amongst the most challenging factors in running a business. From recruitment to termination we can advise on all matters which affect your business. We don't just tell you what the law says, we show you how to apply it to get the most favourable outcome, whatever your industry sector or size. You can contact us to discuss any issue on.
Disciplinary and grievance procedures are essential to provide a clear and transparent framework to deal with difficulties which may arise during the employer and employee relationship. They ensure that everybody is treated fairly and assist employers in complying with employment legislation and the ACAS Code of Practice on disciplinary and grievance matters.
Disciplinary procedures are used by employers to take disciplinary action against an employee for misconduct or poor performance, whilst grievance procedures are used by employees when they want to make a complaint to their employer about any aspect of their work.
Disciplinary and Grievance Procedures in Practice
Tribunals will look to see whether employers have followed a fair procedure in line with the ACAS Code of Practice when dealing with disciplinary and grievance matters. Failure to follow the Code can result in any award of made to an employee by a Tribunal being increased by up to 25%. The same reductions apply if employees fail to follow the Code, e.g. fail to put their grievances in writing.
The ACAS Code of Practice in Disciplinary Matters – A Summary
The principle points of the Code for both disciplinary and grievance procedures are as follows:
- The employer should carry out a reasonable investigation into the facts and issues in question. This is likely to involve the gathering of evidence, interviewing witnesses, obtaining statements and the holding of investigatory meetings.
- The employee should only be suspended if necessary, and then only for as long as is necessary trying to keep the suspension period to a minimum.
- The employee must be given a written notice of the alleged misconduct or poor performance and the possible outcomes if the allegations are proven e.g. dismissal, final warning or warning. The notice should provide enough detail to enable the employee to answer the allegations at a disciplinary meeting.
- The employee should be given copies of any witness statements and other evidence being relied upon.
- The written notice should invite the employee to a disciplinary meeting. The meeting should take place without delay, but providing the employee with a reasonable time to properly prepare (typically 5 working days).
- The written notice must inform the employee of his or her legal right to be accompanied at the meeting by a fellow worker or a trade union representative.
- The employer and the employee should give each other advance notice of any witnesses they intend to call.
- A disciplinary meeting must be held. If the employee unreasonably fails to attend, in their absence the employer may make a decision on the evidence available at the time.
- At the meeting the employer should explain the allegations and go through the evidence that has been gathered. The employee should be given reasonable opportunity to ask questions, present evidence and call relevant witnesses. If the evidence of a witness is challenged in his or her absence, consideration should be given to adjourning the meeting to enable the witness to attend and be cross-examined.
- After the meeting the employer should inform the employee of it’s decision in writing without delay. A written warning should set out the misconduct or poor performance in question, the improvement required, the timescale for improvement, how long it will remain current and the consequences of further misconduct or poor performance. Dismissal is usually only appropriate for gross misconduct or if there has been a written warning and a final written warning previously.
- The employee must be given a right of appeal. The new regime specifically provides for a right of appeal against warnings as well as dismissals, unlike the 'old' law.
- The employer must inform the employee of his or her legal right to be accompanied at any appeal meeting by a fellow worker or a trade union representative.
- Any appeal should be heard without delay and should be handled by a different manager with more seniority than the previous manager and who has no prior involvement in the case.
- At all times employers should manage conduct and poor performance cases pro-actively and nothing precludes cases being dealt with informally if that is appropriate.
- Written records of all communications and minutes of all meetings should always be kept.
What is unfair dismissal?
An employee with the sufficient qualifying service can bring a claim for unfair dismissal in certain circumstance. Employees who started work before 6th April 2012 need to have been employed for 1 year. Employees who started work on or after 6th April 2012 must have been employed for 2 years to bring a claim for unfair dismissal.
It is usually obvious to both an employer and an employee when an employee has been dismissed but an employee may also claim unfair dismissal where a fixed term contract expires but is not renewed, or where an employee has reason to resign because of the conduct of the employer (constructive dismissal).
Fair or Unfair Dismissal?
For an employer to dismiss an employee fairly the employer must show that they had a valid reason for dismissing the employee and that they acted reasonably in treating that reason as a sufficient reason for dismissing the employee.
Potentially Fair Reasons
A number of reasons are potentially fair and enable the employer to dismiss the employee, these are:
- Legal Requirement
- Some other substantial reason
However, if the employer does not follow a fair and reasonable procedure in dismissing an employee, then even if they have a fair reason for dismissal, the dismissal may still be unfair.
Automatically Unfair Dismissals
In some circumstances a dismissal is unquestionably unfair:
- Dismissal on grounds of Trade Union participation
- Dismissal on the grounds of pregnancy or maternity
- Dismissal on the transfer of an undertaking
- Dismissal relating to various other characteristics which are protected by law e.g. race, disability
An employee bringing a claim which they allege to be automatically unfair may not need to have a qualifying period of service. This depends on the nature of the claim.
An employer must act reasonably in all the circumstances in treating the reason for dismissing the employee as a sufficient reason for the dismissals. Employers are under a duty to follow a fair and reasonable procedure in line with the ACAS Code of Practice on disciplinary matters when disciplining and/or dismissing an employee. The purpose of the Code is to make sure all employees are treated fairly.
An employee who is successful in an unfair dismissal claim will be able to claim compensation flowing from the dismissal. They will be entitled to a basic award which is based on their earnings, age and the number of years they have been in employment, and a compensatory award, which will be made up of their loss of earnings, future loss of earnings, pension loss and reasonable expenses incurred by them as a result of the dismissal.
Previously known as Compromise Agreements, Settlement Agreements are legally binding agreements which are used to formalise a full and final settlement between an employer and an employee. The consequences of an employee signing a settlement agreement will be that they are then prevented from bringing or pursuing a claim before an Employment Tribunal or any claim in the future.
When are Settlement Agreements used?
Settlement agreements are useful tools for an employer to terminate an employee’s employment without worrying about having to face a future claim.
Settlement agreements must comply with a number of conditions laid down law. Most importantly settlement agreements must be in writing and the employee must have received independent legal advice as to the effect of the proposed agreement and the effect the agreement will have on an employee's ability to pursue their rights before an Employment Tribunal.
Important Points to Consider When Seeking Advice on a Settlement Agreement
There are many things to consider when seeking advice on a settlement agreement, but some of the most frequent issues which consideration are listed below:
- Tax implications of the termination payment
- Provision of a reference
- Cost contribution for the independent advice
- Reminder of existing restrictive covenants and confidentiality clauses and provision for any new clauses
- Provision for resignation from office of Director
- Tax indemnity
- Exclude personal injury and accrued pension right claims
Our employment team can help you draft a settlement agreement or if you are an employee advise you on the consequences of signing a settlement agreement.
Contracts of Employment?
What are Contracts of Employment?
Contracts of employment are the agreements made between an employer and the employee which govern their relationship.
Do I need a Written Contract?
t is not necessary to have written contracts of employment to evidence the agreement between an employer and an employee. However, the law does state that it is a requirement that an employer provide an employee with a statement of their main terms and conditions of employment. The statement is not conclusive evidence of a contract of employment, but it must cover the following:
- The name of the employer and the employee
- The date the employment began
- The date the continuous employment with the employer began
- The scale or rate of pay, the method of calculating pay and the intervals at which an employee will be paid
- The hours of work
- The place of work
- Any terms relating to holiday entitlement and the accrual of holiday
- Any terms relating to incapacity and entitlement to sick pay
- The length of notice each party must give to terminate the contract
- The job title or a brief description of the work to be carried out by the employee
- Whether any collective agreements apply to the employee
- The employer’s disciplinary and grievance rules
- Any terms relating to the provision of a pension by the employer
- If the contract isn’t permanent then it should specify the period for which it is expected to continue
The statement must be given to the employee within 2 months of them commencing employment with the employer and notification of any changes must be given to the employee within 1 month. An employee can complain to an employment tribunal if an employer fails to provide them with a statement of main terms and conditions.
The statement can cover other issues which an employer may wish to include such as the right to put the employee on garden leave or pay them in lieu of notice rather than having them work the notice. This is why many employers choose to have formal contracts of employment as it enables them to ensure that they not only comply with their obligations under the Employment Rights Act 1996, but also ensure that they and the employee understand the nature of their relationship and their obligations to one another.
Any ambiguity can lead to misunderstanding and disputes and it is therefore advisable for both the employer and the employee to give careful consideration to the terms which will apply to the employment relationship and to record these in writing. Written contracts of employment can help to avoid any uncertainty and ambiguity.
What is a Staff Handbook?
A staff handbook is a written document which details working practices, expectations and procedures which an employer may expect an employee to comply with. A staff handbook should be given to an employee in addition to their contract of employment. It can cover lots of issues specifically tailored to an employer’s business, such as equal opportunities, dress codes, family friendly rights and guidelines for the use of motor vehicles.
A staff handbook will also avoid any misunderstandings and ambiguity arising and properly enforced and monitored will ensure that policies and working practices are being applied consistently.
Taylor Bracewell can also help you with:
- Employment Advice and Representation
- Full HR Services
- Fully Insured Monthly Retainer
- Employment Law Training
Varying Contracts of Employment
Varying contracts of employment and the terms in them is not necessarily straightforward.
Some terms can be changed by an employer without the agreement of employees and these include non-contractual policies and procedures and working practices. However, this is not the case with contracts of employment and it is therefore important to take advice regarding any proposed variation of a contract.
Why change a contract of employment?
There are lots of reasons why either an employer or employee may wish to vary a contract of employment.
An employer may need to change contractual terms because of economic circumstances or because they are undertaking a reorganisation of their business, whilst an employee may seek to amend the contract so that the terms are more favourable or better suited to their individual circumstances.
How can contracts be varied?
A contract of employment can be varied in the following ways:
- By agreement following consultation
- Unilaterally by one party
- By termination and re-engagement on new terms
Any variation to a contract will be a permanent change unless agreed otherwise.
Given the permanency of a change, employers and employees should consider any approach to varying contracts of employment cautiously. In particular, employers need to be aware that some changes, if made without consent, may entitle an employee to resign and bring a claim for unfair constructive dismissal.
Employers can also build some flexibility into a contract of employment to help them in varying contracts more easily by using an express term in the contract stating that a particular term can be varied by them. For example, duties which the employee undertakes or the place at which the employee is employed.
Other things to consider
All variations should be recorded in writing and should be signed by both parties. This can therefore be used as evidence of the agreement reached between the employer and employee.
Certain clauses such as mobility clauses or restrictive covenants need to be drawn up with particular care to ensure they can be relied upon in the future. You should seek specialist advice on the nature, implications and enforceability of such clauses.
Directors Service Agreements
What are Directors Service Agreements?
Directors Service Agreements are a form of employment contract, but they are tailored to the specialised nature of the role of a director and the more onerous duties they owe to the company compared to an employee. They cover the way in which the director will serve the company and pay close attention to the way in which the director’s relationship with the company is governed by legislation, in particular the Companies Act 2006.
Why is it different to a Contract of Employment?
In addition to the basic terms and conditions of employment that must be provided to an employee, the Companies Act 2006 places specific duties on directors. It is essential that these are included in the contract governing the relationship between a company and their director and Directors Service Agreements are the appropriate vehicle to use to ensure that this is done.
There is even more regulation for directors of listed companies and the more onerous obligations will have to be included in the agreement too. As well as being an incentive tool, Directors Service Agreements are also a means of corporate governance.
There are a number of issues which you should consider when negotiating a director’s service agreement, including:
- Remuneration package – including shares and share options
- Length of notice period
- Garden leave clauses
- Restrictive covenants
- Compensation on termination
We can help you to draft an agreement or review an existing agreement under a fixed fee arrangement.
Discrimination on the following grounds is prevented by law:
- Sex (and pregnancy)
- Sexual Orientation
- Religion or Beliefs
What is Discrimination?
It is unlawful for employers to discriminate against current or prospective employees on any of the above grounds.
Equal Opportunities Policy
Although this is not something that is required by law it is recommended that all employers should have an equal opportunities policy in place to address fairness at work and to prevent discrimination. Employers should also have an action plan to ensure that the policy is revisited from time to time. The policy will enable an employer to show to their employee, potential recruits and customers that they are serious about fairness and tackling discrimination and it will help employees understand their responsibilities to their colleagues and customers. The policy will also help an employer comply with the law.
The law prohibits sex discrimination against individuals in the area of employment, education and the provisions of goods, facilities and services and in the disposal or management of premises.
The law applies to women and men of any age and applies in relation to job adverts, opportunities within a job i.e. promotion, pay, harassment or victimisation. Discrimination can be direct or indirect. Certain dismissals may also be considered to be unfair if they are related to, for example, pregnancy or maternity. This would also be sex discrimination.
The law prevents discrimination against disabled people in the areas of employment, provision of goods, facilities and services and premises, education and public transport.
An employer who does not make reasonable adjustments within the workplace to accommodate a disabled employee’s needs might be found to be discriminating against that employee. A disabled employee who is on sick leave may need particular consideration when an employer attempts to facilitate the employee’s return to work or thinks about dismissing the employee.
It is illegal to treat a person less favourably then others on racial grounds. These cover grounds of race, colour, nationality (including citizenship), and national or ethnic origin.
Sexual Orientation Discrimination
It is unlawful for employers to discriminate or harass a person on the grounds of their actual or perceived sexual orientation.
Religion or Belief Discrimination
These regulations prohibit discrimination on the grounds of religion or belief in the employment field.
The regulations also outlaw discrimination on the grounds of age. The regulations apply to all age groups and so old and young employees alike are afforded protection from discrimination on the grounds of age.
An employee who succeeds in a discrimination claim before a Tribunal will be awarded compensation for loss of earnings and also injury to feelings. The Tribunal has no ceiling on the amount of compensation that they can award in claims of discrimination.
Every day we work with businesses of all sizes and across all sectors providing specialist employment law advice to help prevent and resolve workplace issues before they escalate. However, there are times when the risk of an Employment Tribunal claim is simply unavoidable.
If you are faced with an Employment Tribunal claim, our experienced team of employment law solicitors are here to provide you with the robust, expert representation you need to allow you to focus on what you do best – running your business.
We are proud to have helped clients successfully defend claims for unfair dismissal, constructive dismissal, discrimination and whistle-blowing. We will support you throughout the process, from drafting your initial response to the claim to providing representation at the final hearing. We are also experienced negotiators and can help you achieve a successful settlement of the claim, should you wish.
Our vast experience of handling Employment Tribunal proceedings ensures that the costs, stress and management time often associated with litigation is kept to a minimum. Call us for a free initial consultation today – we can discuss the matter over the phone, by Skype, or in person at your business premises or at our offices in Sheffield or Doncaster.
If a key employee was to leave your business tomorrow, how would you protect your confidential information and your most important customers and suppliers?
Restrictive covenants are terms that are inserted into an employee’s contract of employment to restrict that employee’s activities for a period of time after their employment has ended. They can be used to prevent the employee from dealing with your clients or suppliers, using confidential information about your company or even from working for a competitor.
There is a common misconception that all such clauses are unenforceable. Whilst the law regarding the enforceability of restrictive covenants is complex, provided that they are drafted correctly these types are restrictions can certainly be used to provide your business with important protection from former employees.
Our specialist team of employment solicitors can assist you in drafting restrictive covenants for your contracts that are enforceable and that accurately reflect the circumstances of the business. Should one of your employees act in breach of their restrictions, we can also provide your business with robust representation to enforce the contract including the pursuit of High Court action if necessary. Call us for a free initial consultation today – we can discuss the matter over the phone, by Skype, or in person at your business premises or at our offices in Sheffield or Doncaster.
What is a Redundancy?
Contracts of employment are the agreements made between an employer and the employee which govern their relationship.
Do I need a Written Contract?
A redundancy situation arises where:
an employer has ceased or is due to cease to carry on business
an employer is closing down the workplace where an employee has been employed
the needs of the business for work that the employee has been doing has reduced or disappeared or is expected to do so
the need of the business for the number of employees to carry out work has reduced or disappeared or is expected to do so
For an employer to dismiss an employee fairly the employer must show that they had a valid reason for dismissing the employee - i.e. redundancy - and that they acted reasonably in treating that reason as a sufficient reason for dismissing the employee.
Rights of Employees?
Right to be consulted
Reasonable periods of time off with pay to look for other work
The right to be offered suitable alternative posts if any are available within the organisation
What if we get the procedure wrong?
If formal procedures are not followed the employee could claim unfair dismissal if they have been employed for 1 year or more. In principle redundancy is one of the ‘fair’ reasons for dismissal, but if an employer goes about handling the redundancy without following a fair and reasonable procedure the dismissal will be deemed to be ‘unfair’ and in some cases may be deemed to be automatically unfair.
There may also be the potential of a claim of discrimination being pursued by the employee if they feel that they have been selected by reason of race, age, disability etc.
Employees who have completed 2 years or more continuous employment will be entitled to a statutory redundancy payment. This is calculated with reference to their earnings, age and length of service. The longer an employee has worked for the employer the more redundancy pay they will be entitled to. An enhanced payment can be made by the employer if desired.
Redundancy Selection Criteria
Criteria such as ‘last in first out’ (LIFO), the future needs of the business, capability and performance of the employee in the past, and conduct can all be used when selecting staff for redundancy. However, it is essential to use criteria objectively and reasonably to be able to demonstrate that the selection process was fair.
Taylor Bracewell Redundancy Package
We can provide you with a tool kit to assist you in undertaking redundancies and we can guide you through the process to minimise the risk of a tribunal claim.
Business Transfers and TUPE
TUPE, or to give it its formal name, The Transfer of Undertakings (Protection of Employment) Regulations 2006, is the main piece of legislation governing the transfer of businesses. Its purpose is to protect employees when a business changes hands. In a transfer situation, TUPE preserves the transferring employee's continuity of employment and their terms and conditions of employment.
When does TUPE apply?
TUPE can apply in many situations and to a huge amount and variety of business transactions, but the most common types of situation when it can apply are when employers:
- Buy or sell all or part of a business
- Make a 'service provision change' by:
- outsourcing a service they used to undertake themselves to an external contractor
- changing the operator of a service from one external contractor to another
- in-sourcing a service by bringing it back in house
The question of whether TUPE does or does not apply is a very complex one and you should always seek specialist advice on this.
Why do I need to know about TUPE?
As well as protecting employee's rights, TUPE also has the effect of transferring most liabilities with regards to employees to the new employer. TUPE also imposes specific obligations on employers in transfer situations and there are penalties on employers for failure to comply.
In order to protect your business it is therefore important to know when TUPE applies so that you can understand what liabilities you are inheriting and can also ensure that you comply with your obligations under the regulations.
What does TUPE mean legally?
TUPE states that "all the transferor's (old employer) rights, powers, duties and liabilities under or in connection with the transferring employees’ contracts of employment are transferred to the transferee (new employer)".
This means that in a transfer situation to which TUPE applies, employees have the legal right to transfer to the new employer on the terms and conditions which they enjoyed with the old company with all of their existing employment rights and liabilities intact.
TUPE also states that the dismissal of any employee will automatically be unfair if the sole or principal reason for the dismissal was the transfer or a reason connected with it unless there is an Economic, Technical or Organisational reason (an ETO reason) entailing changes in the workforce. It is very difficult in practice to rely on this defence as it is very narrow in its application and you should seek specialist advice before taking any action which could result in the dismissal of an employee.
Employers are also prevented from making any changes to the terms and conditions of employment of the transferring employees if the sole or principal reason for the change is the transfer or a reason connected with it unless there is an ETO reason entailing changes in the workforce.
What must you do to comply with TUPE?
Inform and Consult
Both the old and new employer are obliged to and have responsibility for, informing and consulting with appropriate representatives of employees affected by the transfer about the transfer and any proposed ‘measures’. Measures essentially means changes. In order for the information and consultation process to be meaningful, certain information must be given to the appropriate representatives in good time.
If the new employer envisages making any changes after the transfer, then they will have to let the old employer have this information in order that the old employer can ensure that the appropriate representatives know about the proposals. Again this information should be provided in good time in order to ensure that consultation is meaningful.
There are penalties for employers who fail to inform and consult properly under TUPE and each employee can claim up to 13 weeks’ pay as compensation for the failure. The old and new employers are both liable for any award of compensation made by an employment tribunal for failure to inform and consult.
Employee Liability Information
The old employer must also provide the new employer with Employee Liability Information (ELI) about transferring employees, which includes giving details of their name, age, particulars of employment and disciplinary and grievance records.
There are penalties for the old employer for failure to comply with the duty to provide ELI and the new employer can seek compensation in the employment tribunal, where a minimum of £500 per employee in respect of whom the information was not provided for or was defective will be awarded.
It is not possible to prevent TUPE applying as the law prevents employers and employees from contracting out of the effects of TUPE. However, it is common practice for old and new employers to negotiate on how to divide up any liabilities which arise in a contract by including 'indemnities' in the agreement. You should take specialist legal advice at the earliest possible stage in order to consider options for the inclusion of such indemnities which could either partially or totally shield you against the financial impact of any claims resulting from the application of TUPE.
Peace of mind for you, complete protection for your business.
Our Bulletproof Protection Plan has been designed to make it as simple as possible for you to manage the demands of ever changing employment law. The plan can also shield your business against the cost of any future claims, via our tailored insurance.
We’ll ensure you are complying to all relevant aspects of employment law by providing you with tailored contracts of employment, staff handbooks and template letters.
Unlimited Advice from a Specialist employment lawyer
On joining you will be allocated an experienced, specialist employment lawyer who will get to know you and your business’s specific needs, so you can receive unlimited bespoke advice, allowing you to take swift, decisive action, whilst safeguarding.
Complete peace of mind with our Insurance Protection
Even with these safeguards in place, it is still possible for an employee to make a claim against you. Because of the potential costs in time and money of defending a claim, employers often settle out of court, placing a financial burden on the business, and setting an undesirable precedent. Our Insurance Protection ensures you are always able to defend yourself, whatever happens.
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Avoid any nasty surprises with our fixed fee packages, allowing you to budget accurately and stay protected throughout the year.