Employment

Advising you on your rights and responsibilities

Employment law has for many years been one of the fastest changing areas of law there is in Europe, and with Brexit on the doorstep the changes could start to come even faster.

Whether you are an employer or an employee, the one thing that won’t change is your need to comply with employment legislation. Whatever legislation that is and whichever side of the fence you sit, it is essential that you know your legal rights and responsibilities. Before proceeding with any legal action, however, you should ask for initial claim assessment advice, fixed fee work and eligibility for no-win, no-fee arrangements.

At GHP Legal our specialist employment team has vast experience of dealing with the full range of employment law issues facing business owners and their employees today and our solicitors can help to clarify the complexities of new employment legislation and how it affects you specifically.

Our reputation has been built on understanding our clients' needs and working with them to pursue their objectives. We have a dedicated team of specialist solicitors with extensive litigation experience and a proactive approach who pride themselves in understanding the perspective of each individual, however senior or experienced they may be. The team regularly appear in tribunals and Robert Williams, Partner and head of Employment at GHP Legal, is a member of the Employment Lawyer Association.

There are times in most people’s working lives when things don’t go according to plan and knowing the best step to take is not always clear. This is when you need the support of a team of legal experts you can trust, who are fully conversant with every aspect of employment law and who will always act in your best interests.

The employment lawyers at our offices in Wrexham, Oswestry, Chirk and Llangollen, were noted for their handling of Employment cases by researchers compiling The 2017 Legal 500 list of Top-Tier firms in the United Kingdom. The Legal 500 is the leading guide to law firms in the UK. This is the best endorsement you can have for knowing that our employment law specialists are the best you can get.

Whether you need advice about unfair dismissal or discrimination in the workplace our employment lawyers can help. We can represent you at an employment tribunal, a discrimination hearing or guide you through the minefield of a settlement agreement. We can even assist you to gain compensation for a workplace injury.

Getting advice from our employment lawyers couldn’t be easier. For an initial chat why not come along to one of the free weekly legal clinics we run? You don’t even need an appointment. Employment advice is available on Wednesdays, 12noon-3pm, at our Oswestry office and on Mondays, 9.30am-12noon, at our Wrexham office.

Unfair dismissal

If you have worked for your employer for the qualifying period of 23 months and 3 weeks without a break, under the Employment Rights Act 1996 you are protected from unfair dismissal. This means that if your employer has dismissed you, he or she must be able to prove that the reason for dismissal falls within one of the following categories:

• That you did not have the qualification or ability to perform the job you were employed to do.
• That you displayed unacceptable conduct, for example poor attendance, dishonesty or failure to carry out instructions. Any of these could be deemed gross misconduct.
• That there was a genuine situation of redundancy.
• That by continuing in the job you were employed to do you would be breaking the law, for example if you are employed as a driver and have been banned from driving by law.
• That there is some other viable reason which can be proven to be acceptable based on its own individual facts. 
Even if your employer has dismissed you on one of the above grounds you may still have a case to put to the Employment Tribunal, especially if they have not followed the correct procedures.

Wrongful Dismissal

Wrongful dismissal is completely different to Unfair Dismissal because it is dependant not only on statute, i.e. an Act of law such as the Employment Act 2002, but also on Contract Law. So if your employer has dismissed you without giving you the period of notice laid out in your contract of employment and has not followed the correct dismissal procedure, and as a result you have suffered financial loss, you can bring a claim against your employer for Wrongful Dismissal. The exception to this would of course be if you were dismissed for a proven felony such as theft against your employer.

Wrongful Dismissal claims can often be for quite large sums. Depending on the potential value of the claim they may brought in a County Court or High Court as an alternative to an Employment Tribunal. GHP Legal has considerable experience of handling high value claims so you should seek advice from one of our specialist employment solicitors as early as possible.

Dismissal procedure 

Under the Employment Act 2002 employees may bring a case for unfair dismissal to the Employment Tribunal if their employer has not followed the correct procedure, even if their dismissal falls within one of the specified acceptable categories. As this can be a lengthy and costly procedure, employers often prefer to make a compensation settlement before even getting to a Tribunal. This is usually done through a procedure called Alternative Dispute Resolution, known as ADR. At GHP Legal we have solicitors who are specially trained in this process.

So the first step your employer must take in the dismissal procedure is to set out in writing the reasons why they want to take some kind of action against you. At this stage they do not have to go as far as to say they are going to dismiss you; just that they have a problem with your employment and that you must attend a meeting with them to discuss the matter. If you wish to, you have the right to take an independent person with you to the meeting. Following the meeting your employer must inform you of their decision about the continuation of your employment. This does not have to be in writing, it can just be verbal, but they must also make you aware of your right to appeal their decision to dismiss you. If you find yourself in this situation you should seek immediate specialist advice. 

Discrimination at work

The Equality Act 2010 protects all workers against discrimination. The Act categorises discrimination as nine ‘protected characteristics’ which are: Age; Being or becoming a transsexual person; Being married or in a civil partnership; Being pregnant or on maternity leave; Disability; Race including colour, nationality, ethnic or national origin; Religion, belief or lack of religion/belief; Sex; Sexual orientation. You are also protected from discrimination if you associate with, complain about or support anyone who has a protected characteristic.

The ways in which the Equality Act 2010 protects you at work include: Dismissal; Employment terms and conditions; Pay and benefits; Promotion and transfer opportunities; Training; Recruitment; Redundancy. If you are disabled your employer must make reasonable adjustments to accommodate your needs and provide you with facilities and opportunities equal to non-disabled colleagues.

If you think your employer is discriminating against you, in the first instance make an appointment to speak with them to try and sort out the problem. If this does not work you should come and talk to one of our employment specialists and ask about Mediation or Alternative Dispute Resolution. If all else fails ask about applying to make a claim to the Employment Tribunal. If you call us at GHP Legal we will be able to tell you whether you might be able to get Legal Aid.

Breach of Contract

When you start a new job your employer must provide you with a written contract of employment within two months of you starting work. Even if you haven’t yet received anything in writing, a contract still exists between you and your employer because your agreement to work for them and their agreement to pay you for that work forms a contract. The written statement you receive must contain certain legally binding terms and conditions. If these are not adhered to – by both parties – it constitutes a breach of contract. The same applies to a verbally agreed term or an ‘implied’ term of contract.

If you think there has been a breach of contract, check the terms of your contract to make sure. If you cannot be certain you should seek the advice of an employment specialist. At GHP legal we run drop in clinics at our Wrexham and Oswestry offices where you can come along and chat to one our employment solicitors. You will find the days and times of these on the website.

If there has been a breach of your contract you should in the first instance try and solve the problem directly with your employer. If you cannot sort out the breach that way you can take legal action to sue your employer, but first you should write a formal letter of grievance. You should think very carefully before taking legal action though as you will only get compensation if you have suffered a financial loss such as non-payment of wages. So consider what you want to achieve from suing, and also the cost to you. Again, we can advise you whether we think it is worth you pursuing a case for breach of contract. 

Settlement Agreements

The Enterprise and Regulatory Reform Act 2013 changed the name of what was previously known as Compromise Agreements, to Settlement Agreements. In doing so, Settlement Agreements became the compulsory method of resolving an employment dispute without the need for legal proceedings, i.e. agreements between employer and employee that have been reached through Alternative Dispute Resolution. 

Settlement Agreements can be proposed by either an employee or an employer, but it is voluntary and the opposing party is not legally required to accept the terms proposed. An initial proposal may be made verbally, but for it to be legally binding it must be made in writing.  A requirement of Settlement Agreements is that both parties must have had separate legal advice in agreeing terms. If you have been offered a Settlement Agreement it is likely that your employer will pay a contribution towards the cost of your legal advice.

Whistleblowing protection

If you are a worker accused of whistleblowing, the law protects you against being unfairly treated or losing your job – even if you have a settlement agreement containing a confidentiality clause or ‘gagging clause’. This applies whether you are an employee, a trainee, an agency worker or a member of a Limited Liability Partnership (LLP). There is however a compliance requirement regarding protection for whistleblowing, namely that the wrongdoing on which you are blowing the whistle must be in the public interest and for the benefit others too. Personal grievances do not count as whistleblowing, unless by bringing them to attention others who may be affected will be protected. You can raise your concern about a past incident, an incident that is happening now, or an incident that you have reason to believe will happen in the near future. If you have been accused of whistleblowing, you should seek advice from a specialist employment solicitor. You may also consider seeking legal advice before blowing the whistle.

Redundancy

Whether you have been made redundant individually or collectively within a group of employees there are procedures that your employer must follow. If these procedures are not followed you will probably have a case for unfair dismissal. Even if you are one of a group of employees being made redundant, your employer should still go through a consultation process with you individually. 

At the start of the consultation process your employer must provide you with written details of why you are being made redundant. The reasons must demonstrate that your rights to not have been unfairly selected for redundancy have been upheld. For a redundancy to be genuine your employer must show that your job no longer exists. If you are being made redundant you also have the right to be allowed reasonable time off to look for another job or to arrange training.

Your employer may have offered you alternative employment. You may try this new role for 4 weeks without giving up your right to redundancy pay. If your employer considers the alternative job to be suitable and you turn it down you may lose any entitlement you had to redundancy pay. To qualify for statutory redundancy payment you must have worked have a contract of employment, have at least 2 years continuous employment and have been dismissed, laid off or put on short-time working. If your employer fails to make you a redundancy payment, or if you disagree with the amount being paid, you have six months from the end date of your employment to put in a claim to the Employment Tribunal.

Protection from TUPE if the business you work for is sold

The Transfer of Undertakings Protection of Employment (TUPE) law, which has been in force in the UK since 1981, gives you rights and protection if your employers sell or transfer their business or it is taken over. In agreeing terms of the sale, transfer or take-over, your employers must ensure that your contractual terms – both express and implied terms - and your conditions of employment go with you to the new business and that your employment is continuous throughout the change-over period.

If any of your original terms of employment are significantly changed due to the sale or transfer, you may well have a claim for breach of contract. This includes changes to pay, hours, start date etc., together with the rights and obligations covered in your contract. This is however a very complex area of employment law and you should seek legal advice as soon as possible. Initial advice is available at one of our free legal advice clinics (details can be found here on our website) or by contacting ACAS.

If you have been dismissed or made redundant, either by your old or new employer, it will be automatically classed as unfair dismissal and, provided you have worked for the same employer for two or more years, you can take your case to the Employment Tribunal and make a claim for compensation.

Sickness absence

If you take sick leave you can do so by self-certification unless you have been off work for more than 7 consecutive days (including non-working days). You simply need to ask your employer to complete a Statutory Sick Pay (SC2) form when you return to work. If you are off for longer than 7 days you must provide your employer with a copy of a ‘fit note’ obtained from a hospital doctor or GP. You should always retain the original ‘fit note’. Even if you are on sick leave long term you will remain an employee until either you resign or your employer dismisses you. That said, you have an obligation to remain contactable by your employer and keep them informed about your situation. Sickness absence does not affect any entitlement you have to holiday pay.

If your employer dismisses you whilst you are on sick leave he must have a fair reason to do so and must also follow the correct procedure. Failure on your employer’s part to comply could be grounds for Unfair Dismissal on the grounds of Capability. If you are dismissed you should seek urgent legal advice from one of our solicitors.

Robert Williams

Robert Williams

Partner

A Partner and Head of the Civil Litigation, Personal Injury and Dispute Resolution team in Wrexham

Peter Butler

Peter Butler

Consultant Solicitor

Consultant Solicitor and solicitor-advocate specialising in Civil and Commercial Litigation in Wrexham