Our employment law specialists have experience and expertise in all areas of employment law and can support you in dealing with day to day issues, or defending employment tribunal claims when they arise.
We offer a number of fee options including hourly rates, fixed fees and monthly retainers, all tailored to suit your business needs. We support business owners, managers and HR professionals.
We can offer your business practical and pragmatic advice to help you manage day to day employment matters and to deal with any Employment Tribunal claims.
Our areas of expertise include:
• Unfair Dismissal, including constructive dismissal
• Disciplinary and Grievance procedures
• Redundancy
• Breach of Contract claims
• Discrimination and Harassment
• TUPE
• Whistleblowing
• Maternity and Paternity issues
• Settlement Agreements
We are also able to assist with drafting Contracts, Company Handbooks and Disciplinary and Grievance procedures.
In April 2017 the Government introduced its new apprenticeship scheme, which continues its commitment to encourage employers to invest in apprenticeships.
From 5th April 2017, large employers who spend more than £3 million annually on salaries will be required to pay an apprenticeship levy.
This will be charged at 0.5% of their total employee earnings subject to Class 1 secondary NICs and eligible employers will have an allowance of £15,000. The levy will be paid monthly into an online apprenticeship account, which the Government will top up with an additional 10%.
Employers will then be able to use this to fund apprenticeship training and assessments but they must use the funds within 24 months of paying the levy.
Although the majority of employers will not fall within the apprenticeship levy category (the Government estimates less than 2%), they may still benefit from the apprenticeship scheme.
The Government say they are willing to “co-invest” with smaller employers, which may result in the employer only paying 10% towards apprenticeship training and assessment costs and the Government paying 90% of training and assessment costs. This is subject to various funding bands depending on the type of apprenticeship.
The Government intends for all employers to be able to use an online apprenticeship account by 2020, which will allow employers to effectively manage and negotiate training payments.
It is important that eligible employers familiarise themselves with the apprenticeship levy and the online account to ensure that they make use of the funding within 24 months.
However, both large and small employers have the potential to benefit from the Government’s apprenticeship scheme, and smaller employers may want to consider whether the additional Government funding for apprenticeship training and assessment could make apprentices a valuable asset to the business.
Employers should check what funding bands are available to their sector to establish exactly what funding will be available.
The levy funding is not available to apprentices who started an apprenticeship programme before 1st May 2017.
In the current economic climate employers may decide that reducing employees’ pay or changing their roles may be a preferable course of action to making redundancies.
People are often surprised to learn that in some circumstances it is possible for employers to give staff the choice between agreeing to a change in their contract or losing their jobs.
On the other hand a change imposed upon you without your consent could entitle you to claim unfair dismissal so legal advice may be required.
A Tribunal is likely to consider changes that were necessary for the survival of a business as justifiable and therefore fair but will be wary of those which are simply intended to increase profitability at the expense of the employee.
The above information is not intended to be a complete or definitive statement of the law. For more information or advice please contact our Employment Law team.
Constructive Dismissal occurs when an employee terminates their employment, as a result of their employer’s conduct towards them. Although the employee has resigned the effects are the same as if they were dismissed and they may therefore be able to bring a claim.
There are also certain issues which must be considered before making a claim. For example:
Examples of action which may give rise to a claim for Constructive Dismissal;
The employer’s breach of contract may be one serious incident or the last in a series of less important incidents that are serious when taken together.
The above information is not intended to be a complete or definitive statement of the law. For more information or advice please contact our Employment Law team.
Discrimination claims can be based upon sex, marital or civil partnership status, racial grounds, disability, gender re-assignment, religion or belief, sexual orientation, pregnancy or maternity leave or age.
The following notes are a brief summary of some important differences between discrimination and other areas of employment law.
No upper limit
If there is a finding of discrimination there is no statutory maximum on the amount that can be awarded.
Qualifying period
An employee does not need to have served a qualifying period of service in order to lodge a discrimination claim. In fact even job applicants can bring a claim.
Injury to feelings
There can be an additional award in discrimination cases for injury to feelings.
Not just dismissal
Discrimination claims can be brought where no dismissal has taken place. So a claim can be brought by an employee while still working within a business.
Three month time limit
The Tribunal has the power to extend the usual 3 month time limit if it decides that it would be “just and equitable” for them to do so.
Harassment
Claims can be brought for harassment based on discrimination and the procedures are different to those relating to non-discriminatory harassment cases.
Burden of proof
In discrimination claims the burden of proof can shift from the employee to the employer once the employee is able to provide some evidence of discrimination.
The above information is not intended to be a complete or definitive statement of the law. For more information or advice please contact our Employment Law team.
Most employers will at some stage throughout the year hold social events, for example a Christmas party. Whilst these are times for people to “let their hair down” there are pitfalls for employers to look out for even on such occasions.
The reason for this is because of what is known as vicarious liability. This is where an employer can be held liable for the negligent/unlawful actions of its employees acting in the course of their employment. In the context of the Christmas party therefore, an inappropriate comment or behaviour by one employee to another might well result in that employer being found liable to pay the wronged employee compensation.
It is important that employers ensure that not only for example they have an equal opportunities policy in place, but that adequate training is given to employees. Proactive measures, such as having a written policy in an office manual to cover such events and reminders to employees of what type of behaviour would be treated as unacceptable, would be positive evidence to put before the Tribunal should the need arise.
The above information is not intended to be a complete or definitive statement of the law. For more information or advice please contact our Employment Law team.
As usually happens each April, the statutory rates which apply to employees increased in April 2024, as follows:-
– National Living Wage (21 and over): £11.44
– Age 18–20 (inclusive): £8.60
– Under 18s: £6.40
– Apprentices: £6.40
– Accommodation offset: £9.99
The rate is £184.03 a week or 90% of average weekly earnings, whichever is lower. To be eligible for paternity pay employees must be earning an average of £123 per week (at least) before tax.
Note – this is the rate which applies to shared parental leave pay and after the initial 6 weeks of maternity or adoption leave. For the first 6 weeks of maternity or adoption leave the employee is entitled to 90% of their average weekly earnings and pay during that period is not subject to any cap.
– All National Insurance rates increased by 1.25% on 6th April 2022 for a period of one year.
– National Insurance rates reduced back down to 2021-2022 rates on 6th April 2023 but a new Health and Social Care Levy tax of 1.25% will then be introduced.
The statutory weekly pay figure for redundancy payments and basic awards in unfair dismissal claims increased from £643 to £700 as from 6th April 2024. The maximum redundancy payment therefore increased to £19,290.
The cap on compensatory awards in unfair dismissal claims increased to £115,115 (from £105,707)
The amount of statutory sick pay the employee should receive will depend on their usual working hours, and the period of absence, but the maximum rate payable per week is £116.75 (increased from £109.40 per week in April 2024).
The lower earnings limit (LEL) for eligibility purposes has increased from £120.00 to £123.00 per week.
Employers should take note of these increased rates and ensure that they apply them to any calculations of the relevant pay, after the effective dates.
For further information in relation to these rates, or any employment law related issues, please contact Rachel Fereday on 01380 722311 or rachel.fereday@awdry.law
Employers and employees should ensure they have acted fairly in accordance with the ACAS Revised Code of Practice before bringing formal action against one another or risk the Employment Tribunal making financial penalties.
Workplaces should have a fair and transparent procedure for bringing grievances or initiating disciplinary action. The ACAS Code sets out standards of good practice that employers should consider incorporating into their own workplace procedures. Similarly, employees should abide by these procedures if they are fair. Examples of good practice include:
If the Employer or Employee fail to follow any procedures which the Code of Practice recommends then the Employment Tribunal can take this into consideration and make an adjustment to any award that it makes of +/-25%, depending on the party at fault.
We would therefore recommend that, where possible, employees file a grievance before bringing a tribunal claim and employers ensure that they follow the recommendations of the ACAS Code in relation to any disciplinary action they take against an employee. Employers should also ensure that they comply with any if their own policies and procedures.
The above information is not intended to be a complete or definitive statement of the law. For more information or advice please contact our Employment Law team.
After childbirth a woman has a right to return to the same job on the same terms and conditions. Many women would prefer to return to work on a part-time basis. There is no legal right to do so. However, there is a right to request flexible working, which may include a request to change hours and/or work part-time and employers need to be aware that if they reject a request for part-time work this could be interpreted as indirect sex discrimination and could therefore give rise to a claim.
In addition to the rights mentioned above there is a general right not to be treated less favourable because you are pregnant or on maternity leave. Any unfairness at work relating to pregnancy or childbirth is likely to be viewed as sex discrimination.
A woman on maternity leave also has the right, in a redundancy situation, to be given priority for any suitable alternative roles which may exist and should not, for example, need to go through a competitive interview process for any new or vacant suitable alternative roles.
The above information is not intended to be a complete or definitive statement of the law. For more information or advice please click here to contact our Employment team.
The right to Parental Leave is in addition to any rights for Paternity Leave (see separate Legal Overview on Paternity Leave) or Shared Parental Leave.
Parents of a child under 18 who have worked for the same employer for 12 months are entitled to take off 18 weeks in total for each child up to their 18th birthday, parents who adopt will have up to 18 years after the adoption is finalised to undertake this leave.
Parental Leave is usually unpaid.
Each parent has a right to Parental Leave although if they are separated and their ex-partner looks after the child they only have a right if they have parental responsibility for the child.
Leave must be blocks of full weeks and the employee cannot take more than 4 weeks leave for any one child in any year.
The above information is not intended to be a complete or definitive statement of the law. For more information or advice please contact our Employment Law team.
The right to Paternity Leave is in addition to any rights for Shared Parental Leave (see our separate Legal Overview). Paternity Leave is intended to enable time off to help care for the child and/or to support the mother following childbirth.
To qualify an employee must:
In order to take Paternity Leave employees are required to notify their employers of the due date at least 15 weeks before the expected week of childbirth.
The employee must then give at least 28 days notice of the dates on which they wish to take the leave.
The maximum period of paternity leave is two weeks. This can be taken in a block of two weeks, or one or two separate weeks. It must be taken within 12 months of the date of the child’s birth.
The parent may also be entitled to take a period of shared parental leave.
The rate is £184.03 per week or 90% of average weekly earnings, whichever is lower. To be eligible for paternity pay employees must be earning at least an average of £123 per week before tax.
In order to receive statutory paternity pay the employee must provide a completed self certificate confirming that he is the father of the child and/or the husband, civil partner or partner of the mother and:
The employee must give their employer a completed self-certificate to confirm their entitlement and must do so at least 28 days before they want the pay to begin. Fathers and Partners also have the right to Shared Parental Leave.
The above information is not intended to be a complete or definitive statement of the law. For more information or advice please contact our Employment Law team.
An applicant for a redundancy payment must have been continuously employed for a period of two years. Part time employment counts towards continuity in the same way as full time employment.
Some groups of employees are excluded from a right to a redundancy payment. These include merchant seamen or shore fishermen, crown servants, members of the armed forces or police services, apprentices who are not employees at the end of their training, domestic servants who are members of the employer’s immediate family, employees who unreasonably refuse suitable alternative employment and employees dismissed for misconduct.
For each complete year of service up to a maximum of 20, employees are entitled to half a week’s pay for each year of service under 22, one week’s pay for each year of service between 22 and 41, and 1.5 weeks wages from the age of 41 and over.
There is a maximum statutory limit for weekly pay which is currently £571. This figure is reviewed annually. It is open to employers to pay more than the statutory maximum.
If an employer is unable to make the required payment, the DTI (Department of Trade and Industry) can pay the employee direct from the NI fund.
The above information is not intended to be a complete or definitive statement of the law. For more information or advice please contact our Employment Law team.
In 1971 only 9% of women returned to their jobs within nine months of childbirth. Now the majority of working women do so and this reflects one of the biggest changes which has occurred in working life in this country.
More than ever there is a demand for working patterns to be flexible and to reflect changing attitudes towards full time work.
Am employee returning to work after maternity leave has the right to request reduced hours or part time work but cannot insist upon it. The right to return to the same job is exactly that and does now include a right to require changes in that job.
As an employer you should consider whether an employee’s duties can be carried out on a pat-time basis, or through a job share, but if you believe that accommodating the employee’s request is simply not possible or practical, you can refuse.
However you should be wary of rejecting such requests unless there is good reason because you could face a claim for indirect sex discrimination and there is no ceiling on awards that can be made for successful discrimination claims.
The above information is not intended to be a complete or definitive statement of the law. for more information or advice please contact our Employment Law team.
Parents of babies due to be born or placed for adoption on or after 5th April 2015 now potentially have a right to Shared Parental Leave which aims to give parents flexibility to decide how to split the 52 weeks leave between them.
The Mother must take the first 2 weeks (usually 4 weeks if she works in a factory) as Maternity Leave but the remaining 50 (or 48) weeks can now effectively be split between the parents in any way they choose meaning that both parents could take leave at the same time or alternate leave between the two of them in blocks.
Each parent has the right to submit up to 3 requests for leave which means that employees could request 3 separate blocks of leave throughout the first year of the baby’s life, returning to work between blocks. The employee could also ask to take the leave in more than 3 separate blocks but there is no obligation for employers to allow requests for leave which is not in one continuous block.
The employee only has a right to three separate requests, which includes requests for changes and therefore employees who intend to take more than one block of leave, and who have any doubt as to when they will want to take that leave should save at least one of their 3 requests to allow them the opportunity to change their leave dates if necessary, or to serve the leave request for that period as late as possible (but no less than 8 weeks before).
Shared Parental pay (ShPP) is restricted to the basic rate (currently £156.66 per week or 90% of salary whichever is lower).
The enhanced 90% of usual salary payment which applies to the first 6 weeks of maternity and adoption leave does not apply to shared parental pay and therefore, it seems likely that most mothers (or main adopters) will at least take the initial first 6 weeks as maternity (adoption) leave.
Each parent on shared parental leave may work up to 20 shared parental leave in touch (SPILT) days but these are, like existing keeping in touch days, optional and require the agreement of both parties.
Parents taking or seeking to take Shared Parental Leave have similar protection to parents on maternity or paternity leave. Employers must not treat employees less favourably due to their request to take Shared Parental Leave and dismissal for reasons connected to taking Shared Parental Leave will usually be automatically unfair.
A parent returning from Shared Parental Leave will have the right to return to the same, or similar job. The question as to whether they have a right to return to exactly the same job, or a suitable and appropriate alternative, will depend on the total number of weeks leave, and the type of leave, the parent has taken.
The rules and notice requirements in relation to Shared Parental Leave are complex. Employers need to understand what they must agree and what they have the right to refuse therefore it is useful to have a comprehensive policy in place for both parties to refer to.
The above information is not intended to be a complete or definitive statement of the law. For further advice on Shared Parental Leave or other employment law matters please contact our Employment Law team.
The National Minimum Wage is a minimum hourly rate of pay which a worker’s pay must not fall below. It became statute on 1st April 1999 to set a minimum benchmark and to prevent excessively low pay to workers.
It is a legal right which applies to almost all UK workers. The National Living Wage applies from April 2016 to workers aged 25 and over, and from 1 April 2021 to workers aged 23 and over. It is therefore important to check that you are still complying with the law.
The current rates are:
If a worker suspects that their employer is not paying them the National Minimum Wage they can make a complaint about their employer to the HMRC.
HMRC is responsible for enforcing the National Minimum Wage and as well as responding to complaints received by workers they also conduct ad hoc visits to employers to ensure compliance of the National Minimum Wage to workers.
If you are found to not pay the National Minimum Wage then you may face a penalty of 200% of the arrears of payments you have not made (increased from 100% as from 1st April 2016), up to a maximum of £20,000 per worker. There is also a risk of criminal prosecution for deliberate failure to pay the National Minimum Wage.
The National Minimum Wage applies to adult workers that are:
Employers with salary sacrifice arrangements must remember that the actual wages the employees receive, after the salary sacrifice, must not fall below the National Minimum Wage.
If an Employer is considering making any other deductions from employees’ wages they should be cautious and ensure the deductions are not taken into account for National Minimum Wage purposes.
The above information is not intended to be a complete or definitive statement of the law. For more information or advice please contact our Employment Law team.
The laws surrounding the dismissal of employees often cause difficulties for employers and it is crucial that employers know when they can dismiss an employee and what procedures should be followed in order to avoid claims for unfair dismissal.
There is usually a requirement that an employee must have worked for their employer continuously for more than two years to gain the right to claim unfair dismissal.
However, there are several reasons for dismissal which are deemed to be automatically unfair and employees dismissed for one of those reasons do not need to have accrued two years of service to make a claim.
If the dismissal is automatically unfair, it does not usually matter how long the employee has been employed by the employer in order to bring a claim for unfair dismissal.
Employees under fixed term contracts can also claim for unfair dismissal if their contract is not renewed but ‘temporary’ workers cannot. The legal definitions relating to these types of employees are complex and legal advice should be sought if in doubt.
There are several reasons why a dismissal would be deemed automatically unfair, the majority of which relate to statutory rights which employees have. The reasons include (but are not limited to):
There are five potentially fair reasons for dismissing an employee:
1. Conduct – this would include theft, bullying of staff, being intoxicated at work and other reasons relating to the actions of the employee. Misconduct must be serious or repeated on several occasions to be a fair reason for dismissing an employee.
2. Capability – this section would cover circumstances in which an employee is unable to do the job, for example by reason of long term illness, being unable to keep up with the requirements of the job or being unable to work within a team. Employers should be cautious where dismissing employees for reason of illness and bear in mind the Equality Act 2010.
3. Illegality – This covers situations where it would be illegal for the employer to allow the employee to continue doing their job. An obvious example of this is if a delivery driver loses his driving license.
4. Redundancy – Redundancy is potentially a fair reason for dismissing employees if the employer relocates, needs fewer workers or restructures. There are specific procedures which must be followed in cases of redundancy. For further information see our Legal Overview on redundancy.
5. Some other substantial reason – This section is much wider and allows employers to dismiss employees where there is a very good reason but which is not covered in any of the four sections above.
The employer’s actions in choosing to dismiss an employee for one of the fair reasons must be considered to be a reasonable response to the situation and procedures must be followed.
If an employee successfully claims unfair dismissal there are several remedies that the Tribunal can order, the most common of which is compensation.
Awards for compensation may include the following elements:
The above information is not intended to be a complete or definitive statement of the law. For more information or advice please contact our Employment Law team.
Employee’s normal working hours should be contained in their contracts and should specify what the working hours are and also detail any working patterns.
According to the Working Time Regulations most workers should not have to work more than an average of 48 hours a week, with the average working week calculated over a 17-week period. Workers can however elect to choose to opt out of the 48 hour week by signing an opt-out agreement.
The law states that a worker is entitled to a minimum rest period of 11 consecutive hours (12 consecutive hours for young workers) in each 24-hour period during which he/she works for their employer and one whole day off in each working week (2 days for young workers).
Young workers under the age of 18 cannot usually work more than 40 hours a week or an eight hour day.
An employee who works longer than 6 hours in a working day is entitled to a rest break which must be a minimum of 20 minutes. Whether breaks are paid or not will depend upon the terms specified in the employment contract.
Contracts of employment and/or office manuals/staff handbooks should refer to arrangements for overtime pay in respect of authorised “extra hours” worked by employees; although there is no legal right for overtime pay for extra hours worked. Some employers opt to offer employees “time off in lieu” instead of paying overtime.
Entitlement to paid holiday for workers commences on the first day of employment. The current statutory minimum is 5.6 weeks which, if you work a 5 day week, equates to 28 days.
There is no statutory entitlement to paid time off for public holidays; any rights must be in the terms of the contract. Paid public holidays can be included in the statutory entitlement as dictated by the employment contract, if the contract provides a more generous entitlement then the employee will benefit from that. Part time workers are entitled to the same holiday as their full time colleagues with their entitlements calculated on a pro-rata basis.
Upon termination of employment workers have to be paid for any untaken holiday recalculated up to the last day of employment. There is no legal right to carry holiday forward to the following holiday year; unless the contract provides for this. Employees should be provided with holiday procedures in Staff Handbooks or Office Manuals.
Regulations don’t apply if you are self-employed, running your own business and are free to work for different clients and customers. The regulations also don’t apply to services such as the armed forces or the police.
The above information is not intended to be a complete or definitive statement of the law. For more information or advice please contact our Employment Law team.
The Part Time Workers Regulations provide that part-time workers are entitled to equal treatment with their full time colleagues.
An employer risks inviting a claim if a part-time employee receives less favourable treatment than full time workers.
There is now also a right for certain employees to request part-time or flexible working hours. Flexible working could mean working less hours, condensing the working week into fewer days, or a change to the place of work or the hours worked.
To make a request the employee must have been in continuous employment with the same employer for a period of not less than 26 weeks and only one request can be made in each 12 month period. This is a right to request flexible working.
An employer is not required to automatically accept the request but must show that proper consideration has been given. Employers can only reject the request it must be for one of 8 specific reasons, as follows:
If a request is made it must be dealt with reasonably, and you must inform the Employee of your decision within 3 months, or any longer period which is specifically agreed between you.
If you decide to refuse the application you must state the grounds for refusal. There is no strict requirement to allow an employee to appeal your decision but ACAS recommends that you do.
Employees may have grounds for a claim if their employer fails to deal with requests appropriately and if that claim is successful the Tribunal can award compensation of up to 8 weeks pay. If an employee is dismissed for making a request they may have a claim for unfair dismissal.
The above information is not intended to be a complete or definitive statement of the law. For more information or advice please contact our Employment Law team.
© Awdry Law Solicitors in Wiltshire
VAT number 137523963
