Join Our Newsletter

Email:

Can employers stop an employee or other worker from taking them to an employment tribunal?
Yes – but only if they use a properly drawn up compromise or ACAS conciliated agreement. Kelear Consulting can advise on and draft appropriate agreements.

Do employers have to agree to an employee’s request to work flexibly?
Not necessarily. If an employee makes a formal request to work flexibly under their statutory rights, employers are obliged to seriously consider this request and go through a formal procedure when doing so. They can refuse the request for a number of reasons laid down by statute. However, they do need to take care to avoid a sex or other discrimination claim if they turn down the request. This means that they must have genuine business reasons for the refusal. Fear about setting precedents is most unlikely to amount to a genuine business reason. Timely advice from Kelear Consulting can help avoid successful claims.

Do employers need to pay bonuses to employees on maternity leave?
This is a developing area of the law. If the bonus is part of the employee’s contract the bonus can probably be pro-rated to cover only the period she worked prior to going on maternity leave and the compulsory maternity leave period (two week following the birth or four weeks following the birth if the employee works in a factory). However, if the bonus is not contractual, the employee might succeed in a claim that failure to pay it in full amounts to unlawful sex discrimination. Kelear Consulting can advise how best to proceed in respect of paying these bonuses.

 

Contact Us

information guide

FREQUENTLY ASKED QUESTIONS

Do employers need to give their employees a written contract of employment?
Employment contracts do not have to be in writing to be binding. If an employee is working for an employer and being paid, there is a contract between them. The problem of course is to know what its terms are. This can be pretty important in the event of a dispute. A properly drafted written contract minimises the risk of misunderstandings and legal claims. In any event, the Employment Rights Act 1996 requires employers to confirm the main contract terms to their employees in writing within two months of the start of employment. Failure to do so can result in financial penalties. Kelear Consulting can advise on appropriate contract terms and draft contracts of employment customised to suit the employer’s particular business.

Do employers need to have written employment procedures?
Employers must give their employees details of their written disciplinary, grievance and dismissal procedures to comply with the Employment Rights Act 1996. There is, however, no legal requirement for these procedures to be contractual and there are a number of legal reasons why it is better for the employer if they are not. Employment procedures provide a framework for both parties to follow during employment and so help to clarify the employment relationship. Kelear Consulting can draft employment procedures and customise these to suit the employer’s particular business.

Why can’t employers just dismiss an employee who has behaved badly?
They can – but they may face time-consuming and expensive breach of contract, unfair dismissal, discrimination and other employment claims if they fail to comply with the appropriate legal requirements in respect of the dismissal. Since October 2004, an employer who dismisses an employee who is eligible to bring an unfair dismissal claim without going through the statutory dismissal and disciplinary procedures introduced by the Employment Act 2002 is likely to have an automatically unfair dismissal on their hands and increased compensation to pay too. Kelear Consulting can provide advice on how to dismiss employees fairly without breaking the law.

Can employers dismiss an employee who refuses to agree to a change in the terms of employment?
Yes – but if the employee is eligible to bring an unfair dismissal claim, the employer must reasonably believe that the contract change is needed for business reasons and must normally go through the Employment Act 2002 statutory dismissal and disciplinary procedures. Otherwise, the dismissal will be unfair and this could be expensive. Kelear Consulting can advise on how to proceed in these situations and avoid successful unfair dismissal claims.

When do employers need to consult collectively as well as individually in a redundancy situation and how does this affect the timing of dismissals?
Employers are required to consult collectively with trade unions, if recognised or with elected employee representatives if no trade unions are recognised, where they propose to dismiss 20 or more employees from one establishment within 90 days. The length of consultation is either 30 or 90 days depending on the number of employees the employer proposes to dismiss. In a 2005 case, the European Court of Justice held that an employer who gave employees notice of dismissal prior to the conclusion of collective consultation would breach the collective consultation requirements for redundancy. In most cases this will mean that no notices of dismissal can lawfully be given before the 30 or 90 days are up. As failure to consult collectively can result in an award of up to 90 days pay for each affected employee, getting it wrong can be expensive. Kelear Consulting can advise how to get it right and avoid costly claims.

If employers only use self-employed workers and temps do they avoid the risk of employment tribunal claims?
Not necessarily. Some employment rights such as statutory holidays under the Working Time Regulations and the National Minimum Wage apply to non-employees not genuinely running their own business if they provide services personally. Some contract workers and temps may be regarded by the tribunals and courts as employees anyway. Kelear Consulting can advise on the employment status of a particular individual and what that means in respect of legal risks for the employer.

When are employers liable for their employees’ actions?
An employer’s liability for the actions of their employees can extend to what they do outside the workplace provided the matter is sufficiently connected with work. So far as discrimination is concerned, employers are liable if one of their employees discriminates against another at work – and sometimes outside it - on grounds of sex, race, disability, religion or belief, or sexual orientation (or age after 1 October 2006). However, an employer who has taken reasonable steps to prevent the discrimination may have a defence. An employer may also be liable for the negligent advice on a work matter given by one of their employees to another employee. Kelear Consulting can advise on the issues arising in such situations.

Can I give my employees extra holiday depending on how long they have worked for me?
Yes - provided this does not breach the Employment Equality (Age) Regulations 2006. Extra holiday depending on employees' length of service is a service-related benefit for the purposes of these Regulations. Service-related benefits up to five years service do not have to be justified. But service-related benefits for five years or more service do need to be justified to be lawful. To justify them you need to show that using length of service as a criterion for the extra holiday fulfils a business need such as encouraging the loyalty or motivation or rewarding the experience of some or all of your employees. Kelear Consulting can help you provide service-related benefits which do not breach the Age Discrimination Regulations.

Can I force an employee to retire at the normal retirement date in their contract?
This depends. The Employment Equality (Age) Regulations 2006 set a default retirement age of 65. If your normal retirement age is 65 or higher and you go through the right to request procedure in the Regulations (which requires you to notify the employee of their right to ask to work beyond their retirement date and for you to hold meetings to discuss this), then you can dismiss the employee at 65 without risking a successful unfair dismissal or age discrimination complaint. However, if your normal retirement age is below 65 retiring the employee will be direct age discrimination unless you can justify this lower retirement age. This could be hard to do because you would need to prove that your lower than 65 normal retirement age is really needed for running your business and forced retirement at this age outweighs the need for equal treatment on grounds of age. If you can get over the justification hurdle, you still need to go through the right to request beyond retirement date procedure and if you are not careful you could have an unfair dismissal on your hands.

TOP