top ten employment law tips scrase employment solicitors 180516

Top 10 Employment Law Tips

Rupert Scrase & Martin Augustus

Scrase Employment Solicitors

Scrase Employment Solicitors

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Number 10 – Understanding Notice

• The Employment Rights Act sets out the minimum notice that an employee must receive when their employment is terminated

• Up to a maximum of 12 weeks’ notice after 12 years

• The statutory minimum can be increased by the contract of employment (but not decreased)

• If an employee is dismissed while off sick not receiving pay, they are entitled to be paid during notice (unless their contractual notice is at least one week more than their statutory entitlement)


• A contract of employment may or may not contain a payment in lieu of notice (PILON) clause

• If there is a PILON clause, the PILON must be taxed

• No PILON clause = no legal entitlement to make a payment in lieu of notice. Technically if you pay PILON without a PILON clause you are in breach of contract and are making a damages payment

• NB. Breach of contract (i.e. no PILON clause) may release an employee from post-termination restrictions


• The EDT will always be the last day on which the employee worked, even if they receive PILON

• Unusually, statutory redundancy payments are calculated using the date employment would have ended if a period of statutory notice had been worked

• (NB. Although there may be no requirement to give notice to end a fixed term contract, it is a ‘dismissal’ at law. You must follow a reasonable procedure if the employee has more than 2 years’ service)

Number 9 - Relocation

• Unless it is permitted by the terms of the employment contract, employers cannot require employees to change location

• If an employer no longer requires work to be carried out in a particular location then employees will be redundant unless there is an express relocation clause in the contract. This because the statutory definition of redundancy focuses on the place where the employee is employed

Number 9 - Relocation

• Even where an employment contract contains a relocation clause, there remains an obligation on the employer to act reasonably:

– Provide the employee with plenty of notice

– Provide the employee with relocation assistance

• NB. If you are going through a redundancy process, it is good practice to have 3 individual consultation meetings over 2 weeks. There are also different obligations for collective consultation (20 + employees)

Number 8 – Handling Grievances

• “Grievances are concerns, problems or complaints that employees raise with their employers.” (ACAS Code of Practice on Disciplinary and Grievance procedures)

• Often grievances can be dealt with informally but if it is made in writing then the employer must seriously consider following grievance procedure

• An ET can adjust compensation by up to 25% either way if either an employer or employee unreasonably

fails to comply with the ACAS code


• Send a letter inviting the employee to a meeting with the right to be accompanied

• Hold a meeting with the employee to discuss the grievance

• Decide on the action to take (normally after investigation following meeting) and communicate to the employee

• Appeal to an impartial person, not previously involved in the matter


• What if grievances are raised by 2 or more employees by a representative of a trade union?

• What if an employee raises a potentially serious matter (such as bullying or harassment) but asks that it is not taken further?

• What if an employee raises a grievance while a disciplinary procedure is ongoing?

• Can a resignation letter be a grievance?

• What if a former employer raises a grievance after their employment has ended?

Number 7 – Whistleblowing

• The law protects whistleblowers if an employee dismisses them or subjects them to a detriment

• No 2 year qualifying period and no limit on compensation

• There is no longer a ‘good faith’ requirement

• A disclosure does not have to state that “I am making a whistleblowing disclosure…..”

• A disclosure could be made orally or informally in writing such as an email or text

Number 7 – Whistleblowing

• Although the law does not specifically require it, it is good practice for an employer to have a whistleblowing policy

• Bribery Act 2010 states is a criminal offence if an organisation fails to prevent bribery. A defence is if had in place ‘adequate measures’ which could included an effective whistleblowing policy that encourages the reporting of bribery

• Confidentiality clauses to try to prevent protected disclosures are unenforceable

Number 6 – Handling Employee Data

• Is employee data safe?

– Is employee data held on laptops, tablets, data-sticks or other removable media?

• If yes, is the data encrypted?

• Encryption is more than merely a password protecting access to a laptop, tablet or an individual document

– Are passwords changed regularly?

– Have staff been trained on how to identify cyber crime such as “phishing” emails?


• Does your organisation have in place a procedure to deal with subject access requests under the data protection act?

• Are employees informed how the data you collect will be used?

– In fair processing notice or the employee’s contract of employment?

– Monitoring of email and telephone use

– Sensitive personal data


• Where is employee data actually held?

– Cloud storage systems

• Do you transfer any personal data to the US? In October 2015, the EU deemed that the ‘safe harbour’ arrangements were no longer valid although a new agreement called EU- US Privacy Shield is likely to be put in place

– If relying on existing contractual clauses, data can still be transferred to the US but the UK sender will have to evaluate whether the US recipient will properly safeguard the data


• Social media

– Does your organisation monitor employee’s social media posts?

– Are social media posts considered as part of the recruitment process?

– Does your organisation’s social media policy cover employee’s private as well as work posts?

– Who owns social media accounts?

Number 5 – Automatically Unfair Dismissal

• If an employee brings a claim for “ordinary” unfair dismissal then an ET will apply a test of reasonableness

• This test does not apply if the dismissal is for one of the “automatically” unfair reasons

• (in almost all cases) the 2 year qualifying rule does not apply


• In some cases the upper limit on the compensatory payment (from 6.4.16 the lower of £78,962 or 52 weeks’ pay) does not apply.

– Dismissal for a health and safety reason

– Dismissal for making a protected disclosure (whistleblowing)

– Selection for redundancy for either of the above


Pregnancy or childbirth or with SML, SPL, SAL, ShPL etc

Health and safety Shop and betting workers refusing to work on Sundays

Working Time Regulations

Function as an occupational pension trustee

Function as an employee rep (TUPE and Redundancy)

Making a protected disclosure(whistleblowing)

Asserting a statutory right

Asserting rights relating to Flexible working

Asserting rights relating to NationalMinimum Wage

Asserting rights under Working TaxCredits

Blacklisting


Connected to timeoff for study or training

Jury service Duties as an employee rep in relation to Information and Consultation

Status as a part-time worker

Status as a fixed-term employee

In relation to unionrecognition

Taking protected industrial action

Pension auto-enrolment

Redundancy on the grounds of any of the above

Number 4 – Ill Health Dismissals

• Capability is potentially a fair reason for dismissal

• However, dismissal will be unfair if an employer does not follow a proper procedure which may include:

– Considering prospect of employee returning to work

– The effect of the employee’s absence on other employees

– Considering alternative employment

– Whether contractual sick pay has been exhausted (employer will normally have to wait)


• Disability discrimination

– Includes failure to make a reasonable adjustment

• Obtain an up-to-date medical report (a report that is more than a few months old is likely to be out of date)

• Consider whether there are any reasonable adjustments that could be made that would allow the employee to return to work

• Contact Access to Work


• Consult the employee and again consider any reasonable adjustments that could be made

• Give the employee plenty of warning that they may be dismissed if no alternative can be found

• NB. Take specific employment law advice if employees have the benefit of PHI (Permanent Health Insurance). This is because the courts may imply a term preventing dismissal if the dismissal would deprive the employee of benefits they would otherwise be entitled to

Number 3 – Dealing With Harassment

• Does your organisation have a procedure for dealing with harassment at work?

• Are there provisions that deal with the possibility that the harasser is the line manager?

• Is the policy separate from the grievance procedure?


• Do employees receive training aimed at preventing harassment at work as part of their induction and at regular intervals

• Employers can be held liable for acts of their employees, even if they are unaware of the act or do not condone the act

• Does your organisation carry out equality monitoring?

– Are statistics available regarding the background population for the area in which your organisation is located?


• An employer can defend a claim that it is liable for acts of harassment, committed by its employees if it can show that;

– It took all reasonable steps to prevent the employee from

• Doing that thing;

• Doing anything of that description

Number 2 – Constructive Dismissal

• An employee terminates the contract (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct

• Resignation must be in response to a ‘repudiatory breach of contract’. Employee may resign because of an anticipatory breach

• Once it has been committed, a repudiatory breach cannot be cured (it may be possible to cure an anticipatory breach)


• Resignation could be in response to a single act or it could be the ‘final straw’ in a series of action, each of which taken alone may be minor

• Examples:

– Changing salary or other terms and conditions

– Changing job title (director, executive, manager)

– Excessive workload

– Failing to adequately deal with a grievance or bungling a disciplinary matter

– Intolerable working environment


• Employee must resign in response to the breach of contract

• Must resign quickly (although working a notice period would usually not damage and employee’s claim)

• In effect, a duty on the employer to treat employees nicely

Number 1 – Everything Else

• Remember to always consider indirect sex discrimination if dealing with a flexible working request from a woman with childcare responsibilities

• Write every letter as though an Employment Judge is looking over your shoulder. Try to write concisely using plain language; avoid using jargon and EAALO (explain acronyms at least once)

• Use page numbers and number paragraphs (it makes it easier to find important detail if matters end up in tribunal)


• Remember that every email that you write, every text message that you send and every instant message is retained and can be disclosable in tribunal

• We tend to treat email as an informal medium, like a conversation but it is no different to sending a letter

• Good practice to draft important or sensitive emails first and put the recipients in last


• HR’s role in disciplinary proceedings (Ramphal v DfT)

– An investigation into alleged expenses misuse by a manager inexperienced in disciplinary matters

– The manager’s initial view was partly critical but also found that abuse had not been deliberate – recommended a final warning

– 6 months of communication between HR and the investigator


• Favourable comments were removed and replaced with critical ones – overall view of culpability became one of gross negligence and recommended sanction became gross misconduct


• HR should limit advice to questions of law, procedure and process

• Avoid straying into the area of culpability

• HR should not advise on the appropriate sanction, outside of addressing issues of consistency

• Significant HR influence could compromise fairness

Thank you

We run regular employment law updates.

The next update, with a masterclass on employment contracts, will take place on 28 June 2016.

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Scrase Law Limited t/a Scrase Employment Solicitors. Whilst every effort has been

made to ensure the accuracy of these notes, the information contained withinthem is not comprehensive and does not constitute ‘advice’. You should not takeaction without first seeking professional advice.