What is employment law in the UK?

An employment relationship is governed by three main sources: The contract of employment between the employer and employee; European law that is incorporated into domestic legislation; and Domestic legislation and case law. Some of the key pieces of domestic legislation are as follows: Employment Rights Act 1996 The Working Time Regulations 1998 (amended in 2007) Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 Equality Act 2010

What is the correct procedure for making employees redundant?

In order to ensure that a redundancy is fair, employers must establish that there is a genuine redundancy situation. This can arise in the following situations: There is a reduced need for work of a particular kind; There is a workplace closure (for example, the closure of a particular branch or office); or The business closes down in its entirety. The next step is to 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 held 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. Please read our guide for the full redundancy process.

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/or notice pay; 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.

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 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 – this is the whole purpose of the TUPE Regulations.

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 employees 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.

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, and you should therefore seek advice from an employment lawyer when you are looking to dismiss someone, or if you have been dismissed, even if they/you have less than 2 years’ service.

What is the 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, mandatory, 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. For example, if an employee feels they have been bullied by their manager and they feel they have no option but to resign from their role, this could give rise to a constructive dismissal claim. The key to a constructive dismissal claim is that the resignation must be in response to a breach of a contractual terms (for example, bullying could breach the mutual duty of trust and confidence between the employer and employee), the breach must be fundamental 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 an employer 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 any notice or notice pay). What constitutes gross misconduct varies, however generally gross misconduct will include theft, fraud, violence, dishonesty, serious breaches of health and safety etc.

What steps do employers have to take 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 before dismissing the employee.

Can employees lodge and appeal against dismissal for 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. This should be in line with company policy.

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 of settlement agreements?

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 can happen if an employee doesn’t agree to the proposed settlement will vary 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. Alternatively, both parties may negotiate the terms of the settlement before reaching a final agreement.

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 clause. 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 working hours, their days of work or where they work.

Does everyone have the right to request flexible working?

The right to request flexible working is a statutory right, and all employees have the right to make this request from their first day of employment. An employee is entitled to make two flexible working requests in any 12-month period.

Can an employer reject a flexible working request?

There is a prescribed procedure for dealing with a flexible working request. An employer has a 2-month period within which they must discuss the request with the employee and make a decision. If the employer wants to reject a flexible working request, they must provide the employee with their reason for refusal. There are only eight reasons in law that can be relied upon for rejecting 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.

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Employment law and HR

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The landscape of employment law is constantly evolving. Whether you’re an employer or employee, staying compliant and making confident decisions requires up-to-date, accurate legal guidance. Our experienced employment lawyers help clients to navigate this rapidly evolving area of law by offering employment law advice cost-effectively, providing accurate legal advice, support and guidance tailored to your specific needs.

Our team act for businesses, HR teams and individuals across England and Wales, including many clients in London, Birmingham, and the Midlands, helping to resolve a wide range of employment-related legal issues.

People are the most valuable asset within any business, and, like any asset, they need to be supported and managed effectively and efficiently to achieve long-term success. Our team supports organisations across all sectors with everything from day-to-day HR advice and employment contracts to defending complex employment tribunal claims.

We aim to protect your interests, reduce risk, and provide clarity.

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Our expertise

Managing performance >

Grievances >

Restrictive covenants >

Restructuring and redundancy >

TUPE >

Tribunal claims >

Disciplinary issues >

Settlement agreements >

Training >

Latest employment law advice

Employment law is an ever-changing field. Any employment law breach, inadvertent or otherwise, can be draining on your business, both financially and operationally, given the management time often required to rectify these issues.

Our expertise and knowledge ensure that you are up to date with the latest legislation by reviewing or creating your essential staffing contracts, staff handbook, policies and procedures and providing tailored employment law advice where needed.

With the law regularly changing and new employment cases being decided daily, we produce a monthly e-bulletin which will keep you updated with any significant changes or milestone decisions. You can sign up to receive our e-bulletin here.

Managing performance

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 and maintain standards of performance and ensure that those 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 towards.

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.

Grievances

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 are able to advise you in the background and/or chair grievance meetings on your behalf. We are also happy to provide your management team with tailored training on how to manage grievances.

Restrictive covenants in employment contracts

Employment contracts often contain clauses restricting an individual’s working activity when they leave a business. These clauses, known as ‘post termination restrictive covenants’, typically restrict the ex-staff member’s ability to work in competing businesses, to deal with clients, to try to win business from them, or to poach other staff members.

From an employer’s perspective, restrictive covenants are an obvious way of protecting its interests after an individual’s employment terminates. By the same token, employees will not want their freedom to work elsewhere or to deal with business contacts curtailed. Given these competing interests, it is not surprising that, as several court cases have shown, enforcing restrictive covenants is rarely straightforward so careful drafting is crucial. To succeed, a restrictive covenant has to be very specific, proportionate to the employee’s status, reasonable in its demands, and the employee must agree to the terms.

We have considerable experience in advising on restrictive covenants, having drafted clauses into all levels of employment contracts.

Mediation

Taking a claim to a tribunal can be costly, time-consuming, and emotionally draining. Courts and tribunals have long encouraged the (voluntary) use of mediation as a confidential method of settling disputes in a more conciliatory, less confrontational way, which is why it is most effective when used by parties who are actively seeking an agreement.

Mediators themselves are independent, professionally trained individuals, many of whom are lawyers, who help both parties to see the wood for the trees. Mediators do not offer an opinion on the dispute; they are there to facilitate reaching an agreement. They are able to put a positive interpretation on proceedings to help both parties reach an agreement that works for both sides. At Wright Hassall, we are able to offer mediation service and have qualified in-house mediators.

Both sides to an employment dispute often find the use of mediation to be a constructive method of resolving a dispute. It is cost-effective and should produce a positive outcome, provided that both parties fully commit to the process. If you would like to find out more about mediation and whether it is the right route for you, get in touch with us.

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.

TUPE

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 Large Scale Voluntary Transfers (LSVTs).

Tribunal claims

Bringing or defending employment tribunal claims can be stressful, time-consuming and costly. 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, constructive unfair dismissal, redundancy and discrimination.

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 will have to respond to the employee’s claim within by a specific deadline and it is vital that you do not miss this deadline and that the defence you submit is as strong as possible.

We can assist you in responding to the claim by helping 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 did 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 related dismissals.

Disciplinary issues

Disciplinary issues involving employees are something that should never be taken lightly. ACAS set out clear guidance on following a reasonable procedure when considering disciplining an employee. This called the ACAS Code of Practice on Disciplinary and Grievance Procedures, often referred to as the 'ACAS Code'.

It’s wise to have a disciplinary policy and procedure in place which follows the ACAS Code 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 that you have followed a fair procedure. This process includes: conducting an investigation; informing the employee of the allegations against them; having at least one formal meeting with them to allow them to respond; confirming the outcome in writing and giving them the right to appeal against the 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, then our employment lawyers are on hand to help and guide you through the process.

Settlement agreements

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.

Why choose our employment lawyers?

We know you want prompt, reliable and accurate employment law advice – we go above and beyond by adding a friendly face and consistent contact to guide you through whatever issue or process you’re facing. You’re not just another client; you’re an advocate.

Our team of employment lawyers offer bespoke advice tailored to your unique situation. The team is recognised in the Legal 500 for their outstanding knowledge and service delivery.

"The team at Wright Hassall offers an exceptional legal service. They make you feel valued, supported and equipped to deal with complex situations with legal implications. It’s a gold standard service’"

Employment law and HR training

We have developed a comprehensive training programme for companies so they can equip their managers with the skills and knowledge they need to run and develop their teams or departments. We can develop bespoke training to suit your needs, covering an extensive range of topics, including the following:

An introduction to employment law for managers.
An introduction to HR processes and procedures.
Recruitment and selection: how to pick the 'right' candidate.
Bullying and harassment in the workplace.
Preventing workplace bullying and harassment in conjunction with Conduct Change. View brochure here.
Banter v discrimination in the workplace.
Termination of employment: an overview.
How to manage stress in the workplace.
Managing absence: holidays, family friendly leave and long-term sickness.
Conducting effective disciplinary investigations and hearings.
Conducting an effective grievance process.
Flexible vs hybrid working: what are the differences?
Homeworking: practical considerations for employers.
Discrimination in the workplace: the impact of the Equality Act 2010.
Sexual harassment in the workplace.
Redundancy: how to conduct an effective and legal process.
Protected Conversations/Without Prejudice discussions and Settlement Agreements: what are they and when can they be used?
How to manage underperforming employees.
Conduct vs capability: which process should you use?
Worker, employee or self-employed: how to determine employment status.
What do the Working Time Regulations mean for your business?
Employer and employee obligations post termination.

We believe the maximum benefit of these training sessions or interactive workshops can be achieved by delivering them face to face. However, we are happy to discuss delivering this training remotely if this is more suitable for your organisation.

We are also able to offer our training programmes in a more informal and flexible way via our shorter Lunch and Learn sessions.

If you would like more information on what we can offer, or to organise training sessions, please contact us for more information. You cam view our training brochure here.

Pricing transparency

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 a range of claims, multiple witnesses and extended documentation will, inevitably, cost more than routine or straightforward cases that concern one single claim, fewer witnesses and less documentation.

Pricing transparency

FIND OUT MORE HERE

FAQs

What is employment law in the UK?
An employment relationship is governed by three main sources:
- The contract of employment between the employer and employee;
- European law that is incorporated into domestic legislation; and
- Domestic legislation and case law.
Some of the key pieces of domestic legislation are as follows:

Redundancy

What is the correct procedure for making employees redundant?
In order to ensure that a redundancy is fair, employers must establish that there is a genuine redundancy situation. This can arise in the following situations:
- There is a reduced need for work of a particular kind;
- There is a workplace closure (for example, the closure of a particular branch or office); or
- The business closes down in its entirety.
The next step is to 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 held 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.

Please read our guide for the full redundancy process.
What rights do employees have?
In a redundancy situation, employees have the right:-
1. not to be unfairly dismissed (provided they have over 2 years’ continuous service);
2. not to be selected for redundancy on unfair grounds (i.e. because they are disabled);
3. to be informed and consulted in accordance with the relevant legislation;
4. to have time off to look for alternative employment or arrange training (if the employee has over 2 years’ service);
5. the right to receive a statutory redundancy payment (if they have over 2 year’s continuous service);
6. the right to contractual notice and/or notice pay; and
7. 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

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 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 – this is the whole purpose of the TUPE Regulations.
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 employees 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.

Unfair dismissal

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, and you should therefore seek advice from an employment lawyer when you are looking to dismiss someone, or if you have been dismissed, even if they/you have less than 2 years’ service.
What is the 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, mandatory, 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.

Constructive dismissal

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. For example, if an employee feels they have been bullied by their manager and they feel they have no option but to resign from their role, this could give rise to a constructive dismissal claim.

The key to a constructive dismissal claim is that the resignation must be in response to a breach of a contractual terms (for example, bullying could breach the mutual duty of trust and confidence between the employer and employee), the breach must be fundamental 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 an employer 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.

Gross misconduct

What is gross misconduct?

Gross misconduct is misconduct which is so serious that is justifies the summary dismissal of an employee (dismissal without any notice or notice pay). What constitutes gross misconduct varies, however generally gross misconduct will include theft, fraud, violence, dishonesty, serious breaches of health and safety etc.
What steps do employers have to take 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 before dismissing the employee.
Can employees lodge and appeal against dismissal for 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. This should be in line with company policy.

Settlement agreements

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 of settlement agreements?

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 can happen if an employee doesn’t agree to the proposed settlement will vary 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. Alternatively, both parties may negotiate the terms of the settlement before reaching a final agreement.
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 clause.

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.

Flexible working

What is flexible working?

Flexible working is where an employee can request to amend their working hours, their days of work or where they work.
Does everyone have the right to request flexible working?

The right to request flexible working is a statutory right, and all employees have the right to make this request from their first day of employment. An employee is entitled to make two flexible working requests in any 12-month period.
Can an employer reject a flexible working request?

There is a prescribed procedure for dealing with a flexible working request. An employer has a 2-month period within which they must discuss the request with the employee and make a decision. If the employer wants to reject a flexible working request, they must provide the employee with their reason for refusal. There are only eight reasons in law that can be relied upon for rejecting 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.

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Tina Chander

Key contact

Tina is head of our employment law team. She deals with contentious and non-contentious employment law issues. Tina also heads the firm's business group.

Phone

01926 884687

Email Address

tina.chander@wrighthassall.co.uk

Meet the team