Employment law and HR
The landscape of employment law is ever changing. We help clients to navigate this rapidly evolving area of law cost-effectively, providing accurate advice, support and guidance tailored to your specific needs.
Our employment lawyers work with both employers and employees across the UK and regularly deal with clients from London, Birmingham and Manchester to advise and resolve employment law issues.
People are a significant asset within any business and, like any asset, they need to be supported and managed effectively and efficiently.
Our employment law solicitors work with employers like you, across a wide variety of industry sectors to help avoid and manage issues and protect and defend your business should the need arise.
Latest employment legislation
Employment law is an ever-changing field, and any breach, inadvertent or otherwise, can be draining on your business, both financially and operationally, given the management time often required to rectify these issues. The support and services we provide enable us to ensure that you are up to date with the latest legislation by reviewing or creating all of your essential staffing contracts, staff handbook, policies and procedures and providing tailored advice where it is needed.
With the law regularly updating, and new cases being decided daily, we produce a monthly e-bulletin which will keep you updated with any major changes or milestone decisions. You can sign up to receive our e-bulletin here.
Performance can be one of the most challenging aspects of managing people, and it shouldn't just be left until the annual employee review. The challenges you face when you're dealing with an individual’s performance or ill-health can put a strain on your business, so it is crucial to have plans in place from the outset.
Performance and capability policies are designed to improve the standard of performance and ensure that standards are consistent across your business. These policies can be a great tool in your armoury when dealing with performance issues as they offer a benchmark to work to.
Performance issues due to sickness or short-term absences can be far trickier to deal with. It's advisable to have a clear absence management policy, which is applied across your business and is accessible to all employees.
"Ian Besant is highly experienced in discrimination claims and regularly appears in the Employment Tribunal and Employment Appeal Tribunal. "He is very diligent and has great in-depth knowledge,"
Conflicts in the workplace will happen. Employees will encounter problems, concerns and issues that they feel need resolving. Some of these can be resolved informally, and if necessary by following a grievance policy that has been designed specifically for your business. However, if things escalate, it's important to seek an early resolution to try and avoid any disruption to your business, and the costs and stress of having to involve the Employment Tribunal.
The ACAS Code of Practice sets out the requirements for dealing with grievances. All employers are required to act fairly and in a reasonable manner when dealing with grievance issues.
By having a clearly defined grievance procedure, it will be clear to all employees the process you will go through to address their concerns. As with all policies, your grievance policy and procedure should be reviewed periodically to ensure that they remain compliant,are updated in line with any changes made to employment law and continue to suit the needs of your business.
Our advice on managing grievances is tailored to you and is specifically designed to achieve a resolution quickly to minimise the time and risks to you and your business. We can provide you with an external HR consultant to assist with these processes and chair and necessary grievance meetings if required, we are also happy to provide your management team with tailored training on how to manage grievances.
"Ian Besant regularly advises on tribunal claims including whistle-blowing and discrimination. "He's able to understand the commercial realities of what we're doing,"
Restructuring and redundancy
Businesses restructure for many reasons, to downsize, to cut costs or to concentrate on other product lines and markets. In many cases, this involves making some employees’ roles redundant to avoid the business going into administration.
It is essential as an employer to ensure this process is carried out fairly and legally. For example, if you're making up to 99 employees redundant, you need to start the consultation process at least 30 days before the first redundancy takes place. For over 100 employees, this changes to 45 days.
You should always seek legal advice from a qualified employment lawyer on this process, including the option to request voluntary redundancy and to understand whether TUPE applies. Seeking advice will ensure that the risk of any employment tribunal claims is minimised. If you require any advice in relation to proposed redundancies then please do not hesitate to contact any of the member of our employment team who would be happy to discuss this with you.
What is the correct procedure for making employees redundant?
In order to ensure that a redundancy is fair, employers must establish a reduced need for work of a particular kind, identify the employees who are at risk of redundancy.
You then need to notify the employees affected, conduct a period of fair and meaningful consultation with the affected employees (this can be either individually or as a group consultation, depending on the number of employees involved), explore alternative solutions to avoid redundancy, offer affected employees alternative roles and then ultimately dismiss the employees if no alternatives to redundancy can be identified.
Where between 20 and 100 employees are being made redundant, the consultation period must last 30 days. If over 100 employees are affected then the consultation period is extended to 45 days.
What rights do employees have?
In a redundancy situation, employees have the right:-
- not to be unfairly dismissed (provided they have over 2 years’ continuous service);
- not to be selected for redundancy on unfair grounds (i.e. because they are disabled);
- to be informed and consulted in accordance with the relevant legislation;
- to have time off to look for alternative employment or arrange training (if the employee has over 2 years’ service);
- the right to receive a statutory redundancy payment (if they have over 2 year’s continuous service);
- the right to contractual notice; and
- the right to contractual redundancy pay, if there is an express or implied right to one.
Are there set grounds for making people redundant?
The definition of redundancy encompasses three situations; where a business is closing, where a workplace is closing, and where there is a reduction in the workforce (or a reduced requirement for employees to carry out work of a particular kind).
The dismissal of an employee will only be by reason of redundancy if it is wholly or mainly attributable to one of the above categories.
What is a collective redundancy?
A collective redundancy situation occurs where 20 or more employees are being made redundant over a period of 90 days or less.
TUPE (“Transfer of Undertakings (Protection of Employment) Regulations 2006”) can be a complex area of employment law, and one that most employers overlook. However, it is crucial that employers are aware of their obligation and liabilities under this complex, but frequently engaged piece of legislation.
There are several scenarios where TUPE applies, for example, when a business or part of it, is sold to a new employer. TUPE is designed to protect the original rights and terms and conditions of the employees before and after the sale.
Our lawyers specialise in TUPE work, supporting the TUPE aspects of the transactional work undertaken by the commercial, corporate and social housing teams. We have advised both purchasers and vendors in company acquisitions, sales and outsourcing transactions and the team is particularly experienced in advising registered providers on the TUPE implications of LSVTs.
What is a TUPE transfer?
A TUPE transfer occurs where there is either a business transfer (i.e. where one business is purchased by another, and the legal identity of the employer changes) or a service provision change (i.e. outsourcing or in-sourcing of a particular service, for example a cleaning contract).
What happens to the current employment contracts?
All employees who are subject to a TUPE transfer must be engaged by the new employer on the same terms and conditions that they had at the point of transfer. The current employment contracts are effectively transferred intact to the new employer.
How much notice do you have to give employees?
Both the incoming and outgoing employers must inform and consult with employees in respect of a TUPE transfer. Consultation will usually take place with employee representatives (unless there are less than 10 employees affected).
There is no set amount of notice to be provided, but the notice must be sufficient to enable a full consultation. Failure to consult can result in compensation of 13 weeks’ uncapped pay for each employee affected.
Can employers dismiss people under TUPE?
Generally a dismissal which occurs as a result of a TUPE transfer will be unfair, unless it is for an ETO (economic, technical or organisational) reason.
An ETO reason is likely to include a reason which relates to the profitability or market performance of the business, a reason relating to the nature of the equipment or production processes the business operates, or a reason relating to the management or organisational structure of the business.
Even if an ETO reason applies, the employer must still ensure that they follow a fair process prior to dismissal. If you are considering terminating employees who have TUPE transferred to your business, or you have been dismissed yourself after being TUPE transferred, then it is highly recommended that you seek advice and guidance to determine if the dismissal is/was fair.
Defending employment tribunal claims is a stressful and time-consuming period. Our employment solicitors are experienced in dealing with any employment disputes and are able to guide you through the tribunal process from start to finish, gather evidence, and provide you with practical steps on how to progress matters.
The most frequent disputes in an employment scenario are unfair dismissal and constructive dismissal, redundancy, discrimination and bullying.
Before submitting a claim, all employees have to follow the ACAS Early Conciliation (“EC”) process. This gives both you and your employee a chance to resolve the dispute without the need to go to the employment tribunal. Our employment lawyers have a wealth of experience in handling the ACAS EC process, and would be happy to provide you with any assistance you may require.
If the ACAS EC process is unsuccessful, and the employee does proceed with a claim, it is advised that you seek legal advice quickly. You have to respond to the employee’s claim within 28 days and it is vital that you do not miss this deadline and that the defence you submit is fit for purpose.
We can assist you in responding to the claim by assisting you to complete the ET3 response form including the specific particulars of your defence, ensuring all the details and facts are captured. We can also assist in gathering and preparing witness statements and evidence to support your defence.
We work with a wide variety of clients, ranging from SMEs and start-ups through to global organisations and public sector bodies. In the event that an employee does submit a claim against your business, we are well placed to guide, advise and assist you seamlessly through the tribunal process.
We have defended a wide range of cases on behalf of both corporates and senior directors involving an extensive range of issues such as whistleblowing, unfair dismissal, discrimination on the grounds of religious belief, age, race, sex and disability as well as TUPE dismissals.
Disciplinary issues involving employees are never something that should be taken lightly. ACAS set out clear guidance on following a reasonable procedure when considering disciplining an employee.
It’s wise to have a disciplinary policy and procedure in place as part of your overall people management toolkit. Your policy should set out the exact steps to be followed should a disciplinary situation arise.
However, with or without a policy, you still have to abide by the four-stage process so that, no matter what the outcome, you can demonstrate you have followed a fair procedure. This process includes; conducting an investigation, informing the employee of the allegations against them, having a formal meeting with them to allow them to respond, and giving them the right to appeal against any outcome.
It is essential to deal with cases requiring disciplinary action as soon as they arise to avoid the situation spiralling and to protect your business, it is also part of a fair procedure to deal with issues promptly. Knowing the right steps to take can save you time, and mean you avoid a claim being brought against your business. If you require advice or support in respect of a potential disciplinary issue, the our employment lawyers are on hand to help and guide you through the process.
What is unfair dismissal?
An unfair dismissal is where an employer terminates an employee’s employment unfairly; this can either be for an unfair reason, or where no process is followed leading to the dismissal.
Is there a qualifying period for unfair dismissal?
Yes, ordinarily an employee must have 2 years’ continuous service in order to bring a claim for unfair dismissal.
There are exceptions to this rule however, for example if someone is dismissed following making a protected disclosure or in connection with a disability, and you should therefore seek advice from an employment lawyer when you are looking to dismiss someone, even if they have less than 2 years’ service.
Is there a time limit for employees making a claim?
Employees must make their claim within 3 months’ less 1 day of the date of the act that they are complaining of. For example, if someone was dismissed on 20 January they would need to submit their claim on or before 19 April.
The first stage in this process is entering into ACAS Early Conciliation which can extend the time limits for bringing a claim.
What is the correct process for dismissing employees?
The correct process for dismissing employees will vary massively depending on the reason for dismissal and the employee’s length of service. We recommend that you seek the advice of an employment lawyer when considering whether to terminate an employee’s employment.
What is constructive dismissal?
A constructive dismissal occurs when an employee resigns from their position in response to a fundamental breach of their contract of employment. The key to a constructive dismissal claim is that the resignation must be in response to a breach of a contractual terms, the breach must be fundamental (i.e. go to the root of the contract), and the resignation must be without delay.
Do employers have to pay compensation for constructive dismissal?
Yes, if an employment tribunal finds that an employer has constructively dismissed an employee the employer will be ordered to pay the employee compensation. The level of compensation will vary on a case by case basis, and it is awarded at the discretion of the Judge.
Can we dismiss someone on long term sick?
An employer can dismiss an employee who is on long term sickness absence, however the employer must ensure that the correct processes are followed prior to dismissal in order to minimise the risks of any discrimination or unfair dismissal claims. It is advised that the assistance of an employment lawyer is sought when you are looking to dismiss someone who is on long term sickness absence.
What is gross misconduct?
Gross misconduct is misconduct which is so serious that is justifies the summary dismissal of an employee (dismissal without notice). What constitutes gross misconduct varies, however generally gross misconduct will include theft, fraud, violence, serious breaches of health and safety etc.
What steps do employers have to follow to prove gross misconduct?
Whilst an employer can dismiss for gross misconduct without prior warnings and without notice, they must ensure that the dismissal is procedurally fair.
Generally, an employer should inform the employee of the allegations, conduct a full and thorough investigation and then progress matters to a full disciplinary hearing if it is determined that there is a case to answer.
Can employees appeal gross misconduct?
Yes, employees will have the right to appeal against their dismissal (or any other sanction) for gross misconduct. Employers should set out the timescale for appealing and who the appeal should be addressed to when communicating their decision to the employee.
A settlement agreement is used to bring a contract of employment to an end without the risk of the employee bringing a claim in the employment tribunal against you; you offer them a “sweetener” in the form of compensation and they agree not to pursue the business in respect of any potential claims they may have. Settlement agreements are usually comprehensive, well-drafted documents that list out all the possible claims to indemnify the business against them.
Our employment law solicitors can work with you to negotiate the terms of the settlement agreement, the amount offered as part of the agreement and ensure details such as post-termination restrictions are covered to protect you from ex-employees taking current and future business or key personnel from you. If you are considering offering an employee a settlement agreement our employment law solicitors can guide you through the process and can draft the agreements for you to issue.
What is a settlement agreement?
A settlement agreement is a legally binding contract between an employer and an employee which settles any claims that the employee may have against their employer arising out of their employment or it’s termination.
What are the benefits to offering such an agreement?
The benefits to offering a settlement agreement are the protection given to the employer if it is accepted and signed by the employee. Additionally, employees are often offered a compensatory payment under the terms of the agreement in exchange for waiving their rights to bring any claims arising out of their employment or its termination they may have against their employer.
What happens if an employee doesn’t agree to the settlement?
What happens if an employee doesn’t agree to the settlement varies depending on the circumstances under which a settlement is offered.
For example, some employers may make an offer of settlement where an employee is being disciplined and will be dismissed as a result, they may offer to pay them their notice in lieu and provide them with a reference.
If this is rejected by the employee, then the employer would continue with their internal disciplinary procedure.
What clauses can you add to a settlement agreement?
There are a variety of clauses which can be added to a settlement agreement, however usually they will incorporate clauses which cover the payments to be made to the employee, waiving of the employee’s rights to bring a claim against the employer arising out of their employment or its termination, confidentiality, non-derogatory statements clauses and restrictive covenants clauses.
The clauses to be included will vary on a case-by-case basis, and depending on the seniority of the employee who has been offered the settlement.
What is flexible working?
Flexible working is where an employee can request to amend their hours or days of work after they have 26 weeks’ continuous service.
Do I have to offer flexible working to all employees?
The right to request flexible working is a statutory right, and all employees who have been employed continuously for a period of 26 weeks’ have the statutory right to make a flexible working request.
There are some circumstances in which an employer can reasonably refuse a flexible working request; if you are unsure, you should seek the advice of an employment lawyer in the first instance.
Quality assured: Wright Hassall is Lexcel accredited, the Law Society’s legal practice quality mark for practice management and client care.
The cost of running a tribunal depends on the complexity of the case: *complex cases involving multiple witnesses and extended documentation will, inevitably, cost more than straightforward cases where the employer has followed a fair process (based on the Acas Code of Practice) and has a genuine reason for dismissing the employee. Conversely, where it is clear that an employee has been unfairly dismissed because the employer did not follow fair process, this would also be considered straightforward.
What is involved in taking a case to tribunal
Representing an employer: An employer defending a claim from an employee for unfair dismissal or discrimination will have to invest more time and money than the employee, even if the case is straightforward. This is because more people are involved (in the investigation and hearing stages) and an employer will have more contractual documentation to be reviewed. Employers also need to remember when defending a discrimination claim that, if the tribunal finds against them, compensation payments are uncapped.
Representing an employee: An employee bringing a case for unfair dismissal or discrimination is likely to have less contractual paperwork to sift through and there are usually fewer witnesses involved (for instance those carrying out the investigation will appear on behalf of the employer, not the employee). Therefore the overall cost may be lower than that for an employer; nonetheless the complexity of the issues involved will determine the final cost.
The prices outlined below are indicative only and based on a tribunal case being run with a combination of junior and senior lawyers whose time will be apportioned depending on the complexity of the case.
The complexity of a case depends:
- on the number of witnesses and documents involved;
- issues around a claimant’s disability;
- allegations of discrimination;
- whether the case is constructive unfair dismissal or unfair dismissal;
- claims linked to whistle-blowing; unlawful deduction of wages, and wrongful dismissal;
- whether an application has to be amended or additional information about an existing claim is required; and
- making or defending a costs application.
Indicative fee scale
NB: the costs outlined below are based on our hourly rates (which vary according to the seniority of the lawyer involved) and the price range reflects the complexity of a case and apply to both employees and employers.
|Average range of prices (including VAT)|
|Above range is based on our hourly rates: £270 - £330 (including VAT)|
|Medium complexity case||£8,400||£12,000|
|Above range is based on our hourly rates: £330 - £366 (including VAT)|
|High complexity case||£12,000||£24,000|
|Above range is based on our hourly rates: £330 - £366 (including VAT)|
The above prices exclude costs payable to a third party, such as a barrister.The disbursements payable will be the use of counsel (barrister) to attend the tribunal. Barristers’ rates vary according to their experience but, on average, are approximately £1000 (excluding VAT) per day.
On average it takes approximately 12 months from lodging a claim to the tribunal hearing but this timing is wholly dependent on the directions set by the Tribunal and the hearing date. The tribunal will list the hearing and cases can be listed for 1 – 5 days (or more) depending on the number of witnesses and complexity of the claim before it.
|Face to face review meeting||Price (including VAT)|
|Initial meeting to discuss the scope of claim, including review of documents prior to the meeting.||£425|
You can find out more about the status of your claim, and what constitutes fair process, by checking the Acas Code of Practice on the Acas website.
In order to mitigate against an employee being able to bring a successful unfair dismissal claim or wrongful dismissal c...Read article