Employment Law FAQ
We set out some common employment law issues which our clients face, as well as particular situations which we have advised on.
Answers are given for general information only and may not be relied on as an alternative to obtaining legal advice for a specific situation.
I’VE BEEN OFFERED A SETTLEMENT AGREEMENT IN A PROTECTED CONVERSATION
I have been told by my employer that my role is at risk of redundancy and that they want to offer me a settlement agreement in a ‘protected conversation’. What does this mean?
If an employer wishes to terminate your employment (whether for redundancy, misconduct, poor performance or other reasons), they may decide to conduct pre-termination negotiations, which are also referred to as a ‘protected conversation’. These are confidential negotiations with a view to the parties reaching mutually agreeable terms on ending the employment relationship. The effect of this is that if negotiations break down and the employee later brings an unfair dismissal claim, the discussions cannot be referred to in the legal proceedings.
If you are agreeable to the settlement offer, your employer will want the terms embodied in a settlement agreement in which you waive your claims against them, and for which you will need to obtain independent legal advice.
More information about settlement agreements and pre-termination negotiations can be found in the ACAS Code of Practice on settlement agreements at:
CAN MY EMPLOYER INSIST ON A VACCINE?
Can employers make it a condition of employment that employees are vaccinated against Covid?
Mandating that staff are vaccinated carry the risk of discrimination claims under the Equality Act 2010. This is subject to certain exceptions, such as care home staff, who are required to be vaccinated unless exempt, as well as NHS staff from April 2022, under regulations passed by Parliament.
Outside of these exceptions, if the employer requires that staff are vaccinated, this could lead to disability discrimination claims where disabled persons may argue that the requirement is indirectly discriminatory, such as people with allergies. There is also the potential for indirect sex discrimination claims by pregnant employees. The employer would have to show that the requirement is objectively justified – that it is a proportionate means of achieving a legitimate aim. Having a healthy and safe working environment is likely to constitute a legitimate aim. However, the employer would have to show that it is proportionate to mandate vaccinations when less discriminatory means could also be used such as testing and hybrid working.
To encourage staff to become vaccinated, employers could share with staff government vaccine information and implement a vaccine policy which includes paid time off work to take the vaccine or paid sick leave for staff who are unwell after taking the vaccine.
HOW DO I MAKE STAFF REDUNDANT?
Due to a downturn in business, I am going to have to make five employees redundant. How do I handle this?
Briefly, in deciding which employee is selected for redundancy, you should use objective criteria, for example attendance record, skills and capability, and apply these in an independent way. You should warn and consult with the employee concerned and consider if there are alternatives to redundancy or suitable alternative employment. Detailed guidance on redundancy handling can be found on the ACAS website at www.acas.org.uk. It should be carefully followed because if you do not follow the correct procedure in making staff redundant, if staff are unfairly selected or this is not a genuine redundancy situation, you may find yourself faced with a claim for unfair dismissal. You should also consider whether to offer redundant staff a settlement agreement to avoid an employment tribunal claim.
DO I NEED TO PROVIDE PART-TIME STAFF WITH WRITTEN CONTRACTS?
I run a small shop employing two part-time sales persons who each work 18 hours a week. One of them has asked for an employment contract. Is she entitled to this?
Yes, she is. All employees, including part-time employees are entitled to receive from their employers a written statement of particulars of employment no later than their first day of work. The statement should contain the major terms of employment and include the names of the employer and employee, the date the employment began, the date on which the employee’s period of continuous employment began, details of salary and other remuneration, hours of work, place of work, job title, holiday entitlement and so on. The written statement also needs to provide certain information about disciplinary rules and procedures and grievance procedures.
HELP! I’M BEING UNFAIRLY DISMISSED
I have worked in the council for 8 years. I was recently dismissed and told that this was because I was late to work on several occcasions the previous month. Yet for many years the arrangement was that staff could work flexible hours provided they worked 37.5 hours per week including their core hours. Other staff in the department in a similar position to mine were not disciplined. I believe I have been singled out by the new manager because of a personality clash.
You may have been unfairly dismissed and should take legal advice as to whether you should bring a claim in the Employment Tribunal. To defend a claim successfully, first your employers would have to show that they dismissed you for a fair reason. Secondly, they must have acted reasonably in treating this as sufficient grounds for dismissal. It sounds as if they would say they dismissed you for misconduct; if the Tribunal agrees, this would constitute a fair reason. If on the other hand, the Tribunal decides that the true reason for your dismissal was personal differences with your manager, this may not be a fair reason. There is a three month time limit from the date of dismissal for you to bring a claim.
If the Employment Tribunal decides that you have been unfairly dismissed, it will make what is called a ‘basic award’ which is based on the number of years you have worked for your former employers. It can also order that you are reinstated or re-engaged and make a â€˜compensatory awardâ€™. The compensatory award will depend on a number of factors including your loss of earnings but you should bear in mind that you should take reasonable steps to keep your losses to a minimum, typically by looking for a new job.
DO I HAVE TO ALLOW A YOUNG MOTHER TO WORK PART-TIME?
My PA recently returned from maternity leave and asked if she could work from 8.30 am to 4 pm without taking a lunch break instead of her usual 9 to 5 with one hour for lunch. She says that this would suit her childminder and allow her to spend more time with her baby in the evenings. I am happy to try this new arrangement out for a few weeks to see if it works but can I insist she works her normal hours if it doesn’t?
Yes you can, provided you do the following. You should write to her setting out her new working hours. You should say in your letter that the new arrangements are provisional, that you will be reviewing them from time to time and reserve the right to require her to resume her normal working hours if in your opinion, this would be in the interests of the business. You should ensure she counter-signs the letter under a paragraph saying she agrees with these terms and conditions.
Under the Working Time Regulations 1998, workers have a right to a daily rest break of at least 20 minutes (which they are entitled to spend away from their workstation) if they work for more than six hours a day. Even though your PA has asked to forego her lunch break, she has a legal right to a daily break of at least 20 minutes. This is for reasons of health and safety.
CAN I ASK TO WORK PART-TIME?
I have just returned from maternity leave and would like to work part-time (three days a week). One of my colleagues is willing to job-share. I spoke to my manager about this and he says although he believes the arrangement would be workable in practice, the company does not encourage part-time working and would be unlikely to approve the request. What are my rights?
Employees with at least 26 weeks’ continuous employment have a right under the Employment Rights Act 1996 to apply formally in writing to their employers asking for a change in working hours, times and location. If you make this request, your employer will be obliged to follow a timetable in dealing with it and will have to hold a meeting with you within 28 days, notify you of its decision within 14 days of the meeting and so on. More details can be found in the ACAS Code of Practice and ACAS Guide on handling flexible working requests on the ACAS website at www.acas.org.uk. You employer may reject your request for certain reasons for example, the burden of additional costs, detrimental effect on the ability to meet customer demand, detrimental impact on quality and the inability to reorganise work amongst existing staff. If your employer does not deal with your request properly or rejects the application on the basis of incorrect facts, you may complain to the Employment Tribunal although your remedy is limited to compensation of up to 8 weeksâ€™ pay (subject to the statutory maximum). The Employment Tribunal also has the power to order your employer to reconsider your application.
In addition, if the company refuses your request for part-time working without proper justification, this may be indirect sex discrimination. If your application is refused, you may have a remedy under the Equality Act 2010.
HOW DO I RECOVER SALARY THAT IS OWED TO ME?
I recently left my previous job and am owed two weeks’ salary. What can I do to recover this money?
You should first send a written grievance to your former employers setting out your complaint. If the matter remains unresolved, you can bring proceedings for breach of contract and unlawful deduction of wages in the Employment Tribunal to recover the money. Prior to filing a claim, however, you would need to file an ACAS Early Conciliation form following which ACAS will contact you and your former employers with the aim of facilitating an amicable settlement. You will need to act promptly because there are strict time limits for filing these claims and an Early Conciliation form.
I AM BEING BULLIED AT WORK. WHAT CAN I DO?
I work as a nurse at an NHS hospital and am being bullied and harassed by my supervisor. Her behaviour has become worse recently and has taken the form of shouting at me in front of other staff and other intimidating conduct. What should I do?
Your employer will have written grievance procedures and you should follow these. It is likely these will say that you should raise your grievance informally at first and that if your grievance remains unresolved you should put it in writing. The procedures are also likely to say that a meeting will then be held with you to discuss your grievance (at which you have a right to be accompanied) and that you have a right of appeal against their decision. The NHS Trust may also have a written policy on harassment, which may be relevant. If the matter is not resolved satisfactorily, you may have a remedy under employment legislation, in the Courts for personal injury (if for example you have suffered stress or mental illness) and under the Protection from Harassment Act 1997.
WHAT LOCATIONS DO YOU SERVE?
I live in London. Which areas of London is Knight-Webb Solicitors near?
We serve areas of London including South London, Dulwich, Brixton, Lewisham, Bromley, Croydon, Southwark and Lambeth. In-person appointments are available at our office at 54 Atlantic Road, London SW9 8PZ or The Department Store Studios, 19 Bellefields Road, Brixton, London SW9 9UH. We also serve clients nationwide and offer appointments by teleconferencing and videoconferencing. For more information please contact us.