Employment advice for employers

giving adviceEmployment Law is a complex, wide ranging and ever-changing area of law. The RNBDS employment team is able to offer advice, assistance and representation to employers in this potential minefield. Mistakes can be costly, and prevention is certainly better than cure.

We are able to give you prompt, practical advice to help minimise the risk of any claims.

Guidance on Handling Dismissals

A dismissal is defined as the termination of employment by the employer, the employee's resignation amounting to a constructive dismissal or the expiry of a fixed-term contract without its renewal.

Wrongful dismissal

Wrongful dismissal arises where an employer has broken the contract of employment with the employee. Wrongful dismissal, which is based on contract law, should not be confused with unfair dismissal where the remedies are contained in legislation.

The most common cause of wrongful dismissal is where an employee is dismissed either without notice or with insufficient notice. However, if an employee commits a serious breach of contract, for example fraud on the employer, then the employer may be able to justify dismissing the employee without notice - summary dismissal).

RNBDS can advise you in connection with a wrongful dismissal claim and can assist you in bringing that claim to either the Employment Tribunal or the appropriate court, depending on the value of the claim.

Unfair dismissal

Dismissals can be both fair and unfair.

Employment law legislation allows five reasons which are capable of justifying dismissal:

  • Conduct
  • Capability
  • Redundancy
  • A statutory requirement
  • Some other substantial reason

Legislation also provides numerous situations whereby a dismissal will be held to be automatically unfair. The three following examples are merely illustrative:

  • If an employee is dismissed for a reason relating to the employee's membership of an independent trade union.
  • If an employee is dismissed after having made a request to work flexibly in accordance with their right to make such a request
  • If an employee is pregnant, has taken or proposes to take maternity, paternity, adoption or parental leave or time off for a dependant.

If the employer has a valid reason for a dismissal, he must still act reasonably in all the circumstances in dismissing the employee for that reason, or else the Tribunal may rule that the dismissal was unfair.

Determination as to whether an employer acted reasonably in dismissing an employee involves a consideration of the employer's actions and behaviour leading up to the dismissal, in addition to the way the dismissal was carried out.

There are current statutory procedures which you must follow. Failure to follow the correct procedure could put you at risk of being punished further by a Tribunal. However these procedures are likely to change in the next few months due to the new Employment Bill. All the legal changes can be confusing, particularly when you are considering dismissing someone and you do not want to fall foul of the legislation.

If you have any doubts about dismissing an employee for any reason therefore it is wise to contact us prior to dismissal, rather than risking a potentially expensive Tribunal Claim.

Constructive dismissal

Constructive dismissal arises where an employee resigns because of conduct by his or her employer.

For a Tribunal to decide that an employee has been constructively dismissed, the employer's conduct must amount to a ‘fundamental breach of the employment contract', indicating that the employer no longer agrees to be bound by its terms.

The terms of the employment contract include written and oral terms, in addition to what is implied to make the contract workable. One such implied term is that the employer will treat the employee honestly and with good faith. This is often referred to as the duty of mutual trust and confidence. This implied duty is frequently cited as a term which has been breached in constructive dismissal claims.

The team at RNBDS frequently advises employers who are defending constructive dismissal claims. It can be a stressful process particularly as employees often resign because of various personal reasons, but subsequently claim that there is a breach of contract. We are able to support you through the procedure in order to help you with a successful defence.

Eligibility and time limits

An employee who believes that s/he has been dismissed unfairly may make a complaint to the Tribunal provided that s/he has worked for the employer continuously for at least one year, including any statutory period of notice.

A claim for unfair dismissal must generally be brought within three months of a dismissal. However employers do not have as long to respond. A response to a Tribunal Claim must be lodged within 28 days of the Claim being received. It is not enough to simply deny the allegations. The Tribunal will require the response to include everything that a Respondent seeks to rely upon in the future hearing.

We understand that your business will be under other pressures, and that the last thing you will want is the added hassle of drafting a response, particularly if you are unsure about what to include. If the response is not drafted properly, the chances of successfully defending a claim may be limited. It is therefore important that you contact us as soon you are aware that you are likely to be defending a claim so that we can assist, and you can avoid making hurried and costly mistakes.

Advice on Redundancy Situations

Any employee with two years' service, who is dismissed on the basis of redundancy, is entitled to a tax free payment calculated according to their age, length of service and gross weekly wage.

Dismissal on the grounds of redundancy can be fair provided that the redundancy grounds genuinely exist, the employee is treated fairly in the procedure prior to the decision to dismiss, the redundancy is provable on its facts and the employee is fairly selected and consulted with a view to avoiding redundancy.

Employees are entitled to be consulted, through employee representatives and/or individually, in relation to proposed redundancies. Employers also have a duty to consider whether there are any alternatives to redundancy prior to embarking on the redundancy procedure.

For employers is it vital to follow the correct procedure, to avoid future claims. We can advise on this complex area.

Advice on Discrimination Claims

Employees who believe that they have been discriminated against on the basis of their sex, race, disability, age, religious belief or sexual orientation in respect of recruitment, promotion, access to benefits and dismissal, are entitled to make a claim under the relevant discrimination legislation.

Employers have a duty to protect their staff from discrimination, sometimes sadly even from each other. Educating and supporting your staff is perhaps the best way to avoid future problems.

We are able to represent employers who are defending a discrimination claim, and to advise you about how to avoid tribunal action being taken. Having good policies and grievance procedures is vital. We can advise on your current working practices and assist with drafting employment policies. We can also advise you on your obligations and best practice.

If you do however become the subject of a Tribunal Claim, a response must be lodged within 28 days of the Claim being received. As with Unfair Dismissal Claims it is not enough to simply deny the allegations. The Tribunal will require the response to include everything that a Respondent seeks to rely upon in the future hearing.

We frequently assist employers who are defending discrimination claims, and understand how worrying the process can be. We are alive to the sensitivity required in this type of case.

Sex discrimination

Sex discrimination can be both direct and indirect, and not only relates to employees but job applicants.

An employer discriminates directly against a person if, on the grounds of that persons sex, the employer treats that person less favourably than another.

An employer discriminates indirectly against a person if s/he imposes a requirement or condition which when implemented disadvantages a greater proportion of one sex than the other. Several factors need to be present in order for the employer's action to constitute indirect discrimination, and we would be able to advise you on this accordingly. Similarly, we would seek to advise you on any exceptions to the legislation.

Race discrimination

It is unlawful for an employer to discriminate against a person on the basis of their colour, race, nationality, ethnic or national origins.

As with sex discrimination, race discrimination can be both direct and indirect, although exceptions can apply. In addition, job applicants are protected.

Disability discrimination

The Disability Discrimination Act 1995 introduced significant rights for disabled people. It has since been updated by the Disability Discrimination Act 2005.

All employers are now covered by this legislation, however small your business. The Act also provides definitions of ‘disability'. We are able to provide guidance on the content and application of the Act. You should be aware that recruitment is also covered.

Discrimination occurs when a disabled person is treated less favourably than other people for a reason related to his or her disability. A Tribunal may also rule that discrimination has occurred where an employer fails to make ‘reasonable adjustments' to ensure that a disabled person is not placed at a disadvantage in comparison to an able bodied counterpart.

As with all other discrimination, if you receive a claim you only have 28 days in which to respond. It is therefore important to contact us as a matter of urgency.

Age Discrimination

Discrimination on the grounds of age is unlawful and is a minefield for both employers and potential employers. You must be careful when wording recruitment advertisements and throughout your working practices. Age discrimination in employment is when someone's age is used as the basis for employment decisions, for example not recruiting or promoting someone because they are perceived to be too young or old.

As society changes the working population as a whole is getting older. Better health standards mean that some people are choosing to work longer. Age discrimination is rarely about an active dislike (unlike racism for example) but is based on stereotyped prejudices and myths. For example, younger workers being less committed and older workers more loyal would be construed as ageist assumptions. It is therefore easy to let age discrimination pervade your workplace. We can advise on education and policies which should ensure this does not happen.

As an employer you need to be aware of the pitfalls of age discrimination, particularly as you must not recruit, train, promote or retire people on the basis of age, unless it can be objectively justified. We can advise you further on this complex area of employment law.

Religious Belief

It is unlawful to discriminate in recruitment, selection, training, promotion, selection for redundancy or dismissal.

The law applies to discrimination on grounds of religion, or religious or philosophical belief. It covers discrimination on grounds of perceived as well as actual religion or belief and the religion or belief of someone with whom the person associates.

Direct discrimination may occur in areas such as refusing to promote somebody because of their religion.

Indirect discrimination occurs when an employer applies a provision, criterion or practice which disadvantages people of a particular religion or of particular religious or philosophical beliefs and which cannot be justified.

The regulations also outlaw harassment - unwanted conduct that violates people's dignity or creates an intimidating or offensive atmosphere.

There are no length-of-service or age requirements in bringing a claim.

Sexual Orientation Discrimination

The law against sexual orientation discrimination at work covers recruitment, terms and conditions, pay and benefits, status, training, promotion and transfer opportunities, through to redundancy and dismissal.

Both Direct and Indirect Discrimination is unlawful. Employees must not be treated less favourably (for example, being refused employment)because of their sexual orientation or perceived sexual orientation.

If an employer gives benefits to opposite sex unmarried partners of its employees (eg the employees opposite sex partner is able to drive the company car), refusingthe same benefits to same-sex partners could be discrimination.

Since December 2005, same-sex couples can register a civil partnership. A civil partner is entitled to the same benefits as a married person (for example,survivor's benefits under a company pension scheme.

Sexual harassment

Sexual harassment, defined as unwanted conduct of a sexual nature, constitutes direct unlawful discrimination.

Employers may be liable for discriminatory acts of a sexual nature carried out by their employees, unless the employer can demonstrate that such steps were taken as were reasonably practicable to prevent such conduct.

A successful claim for sexual harassment to the Tribunal can result in a declaratory order, compensation (including compensation for injured feelings) or a recommendation of remedial action.

Racial harassment

As with sexual harassment, racial harassment can take many forms and is also unlawful.

A successful claim for racial discrimination to the Tribunal can result in a declaratory order, compensation or a recommendation of remedial action.

Grievance and disciplinary procedures

We can also provide practical guidance to both employers and employees in relation to:

  • The legal requirements relating to disciplinary and grievance procedures;
  • Drafting and using disciplinary and grievance procedures; and
  • The conduct of disciplinary hearings

Representation in Employment Tribunal proceedings

At RNBDS we understand that employment tribunal proceedings can be extremely daunting for those involved. Our dedicated team comprises highly experienced individuals with strong advocacy skills. We will advise and support you through the whole process, whilst striving for the best possible outcome.

Advising on maternity and paternity rights, equal pay, sick pay and working time

The Employment team can advise you your employees' entitlement to maternity or paternity leave and pay and the action that must be taken.

It is unlawful for employers to discriminate between men and women in terms of their pay and conditions where they are doing the same or similar work; work rated as equivalent; or work of equal value. Men and women have the right to equality in the terms of their contract of employment, not only for pay, but also other terms and conditions such as bonus payments, holidays and sick leave.

European law has extended the concept of equal pay to include redundancy payments, travel concessions, employers' pension contributions and occupational pension benefits. There are various defences available to employers, and the team at RNBDS will be happy to advise on an individual basis. We may also be able tohelp you avoid costly tribunal claims.

We can advise you about sick pay policies, statutory sick pay, and your obligationsunder the Working Time Regulations.

Negotiating severance packages and drafting compromise agreements

Employers and employees who believe that their working relationship is coming to an end but who do not wish to resolve grievances in the Tribunal, can enter into a compromise agreement.

Under a compromise agreement, the employer is not required to follow the correct employment procedures and is assured that s/he will not have to defend a Tribunal claim. An employee in return receives an agreed sum and may be able to negotiate other favourable terms, such as agreeing the wording of a reference.

We can help advise, negotiate and draft compromise agreements for employers which provide an effective method of avoiding legal proceedings and the resulting costs.

Health and safety in the workplace and health and safety dismissals

The law imposes a responsibility on the employer to ensure the health, safety and welfare of all their employees whilst at work. Much of the law in relation to safety in the workplace is contained within the Health and Safety at Work Act 1974.

Please see the Health and Safety section of the website for further information.

Employees can be unfairly dismissed if their employer dismisses them, in general terms, for taking steps to protect themselves or others from danger in the workplace. Such steps must be ‘appropriate', which will be considered in light of all of the circumstances.

For employees dismissed on the grounds of health and safety, there is no age limit or qualifying period of service.

Contact us

Please contact us with any employment related queries.