Our employment team specialise in providing expert advice across a comprehensive range of employment issues to enable you to find the right solution, whatever the situation.
As an employer, you might need help preparing employment contracts, for example, or advice on disciplinary matters. As an employee, you may find yourself being bullied or harassed at work and need to know what your options are and where you stand legally.
Many of these situations need a quick, efficient response so it is good to know our team are on hand to provide you with a timely response – and that they have the understanding and experience to deal with your requirements effectively and sensitively, whatever the company, organisation or, industry.
Each and every employee who has attained the qualifying period of service (2 years) has the right not to be the subject of an unfair dismissal. If there is to be a termination of a contract of employment, then an employer must show that the reason (or if more than one, then the principal reason) falls into one of the categories set out in the Employment Rights Act 1996. Examples of such categories are as follows:-
– Employees lack of capability or qualification
– Dismissal relating to conduct, especially if defined as gross misconduct
– Dismissal by reason of a genuine redundancy
– Some other substantial reason
Unless an employer can establish one (or more) of the above fair reasons for dismissal, then the termination of your employment may be deemed to have been unfair.
In the majority of such claims, the process for commencing the Employment Tribunal proceedings must be commenced within 3 months less 1 day from the date that your employment was brought to an end. There is now a requirement for ACAS to be notified within the above period of your proposed intent to issue proceedings and this will commence the “early conciliation period”.
It is imperative that all persons wishing to bring a claim to a Tribunal undertake this period of conciliation before any formal claim can be commenced. The qualifying period of 2 years to enable a claim to be commenced does not apply in the following circumstances:-
– If you are bringing a claim relating to discrimination
– If you are classed as whistleblowing which is the making of a protected disclosure
– If you are dismissed as a result of complaining about or refusing to work in an unsafe environment.
Gross misconduct is behaviour by an employee which is considered to be so serious that it may be treated as terminating the contract between the employer and employee. The acts of the individual must be deliberate or amount to gross negligence and the following are the most common examples of gross misconduct:-
– Malicious damage
– Breach of confidentiality
– Fighting or assault
– Breach of alcohol or drugs policy
– Actions which endanger other employees safety
– Internet or email abuse
Constructive dismissal is where your employer has taken steps which have fundamentally breached your employment contract in some manner. Accordingly, you would have resigned your employment as a result of that breach and that it is imperative that at no juncture are you deemed to have accepted the breach in anyway. Accordingly, a delay in taking steps to claim constructive dismissal may amount to an acceptance of the breach by the employer due to the fact that you may be accused of having affirmed the contract thus making the constructive dismissal claim unlikely to succeed. Such breaches by an employer may include:-
– Failure to provide a safe working environment
– Altering your role or duties without good reason
– Enforcing a reduction in salary and/or other benefits
– Imposition of a disciplinary or performance process that is grossly unfair and disproportionate
– Making your position of employment untenable
This is termed a breach of contract claim against the employer relating to a failure by the employer to adhere to the contractual obligations set out within the statement of terms and conditions of engagement.
The Equality Act 2010 introduced certain protected characteristics which may allow a claim for discrimination to be brought if the employer acts in such a way as to cause harm to the employee. The characteristics are as follows:-
– Gender reassignment
– Religion or belief
– Sexual orientation
– Marriage and Civil Partnership
– Pregnancy and Maternity
Redundancy is primarily a fair reason for determination of a contract of employment upon the proviso that the correct procedures are undertaken by the employer. It may well be that if the employer fails to follow the appropriate due process that a claim for unfair dismissal could be considered.
A restricted covenant is typically a Clause in a contract of employment which prohibits an employee from competing with his ex-employer for a certain period after the employee has left the business, or prevents the ex-employee from soliciting or dealing with customers of the business by using knowledge of those customers gained during the period of prior employment. The starting point for any such post termination restriction is that it is void on the grounds that it is a restraint of trade and contrary to public policy or if it unfairly impinges upon the right of the employee to seek alternate engagement. It is imperative that the restrictive covenants are designed to protect only the legitimate business interests of the employer and that it extends no further than is reasonably necessary to protect those interests. It may be possible to challenge and/or have certain restrictive covenants amended by way of a challenge.
This is a legally binding negotiated agreement between the employer and employee which would normally provide for a severance sum to be submitted by the employer in return for the employee agreeing to waive their right to pursue any issues upon which they believe that a dispute may be formulated to be placed for the attention of an Employment Tribunal. It is necessary for an independent Solicitor to ratify the terms of a Settlement Agreement before it can become legally binding. It is common practice for the legal costs associated with seeking the advice of an independent Solicitor in terms of a Settlement Agreement to be paid in their entirety by the employer.
Being bullied at work can severely affect both your performance as an employee and your health. It is therefore imperative that you would consider taking appropriate action if indeed you feel that you are being subjected to offensive, intimidating, malicious or insulting or humiliating behaviour. If the employer or indeed another employee is abusing their position of power or authority or attempting to undermine you as an individual then it is imperative that you look to resolve these matters at the earliest opportunity.
This firm is regulated by the Solicitors Regulation Authority No. 612241 (Sheffield) & 612666 (Hathersage)
Favell Smith & Lawson is a trading name of Favell Smith & Lawson Limited.
Registered in England No. 8854289.
VAT No.: 172 5631 65