Frequently Asked Questions

General
How is the employment helpline charged?
On a fixed fee basis

What issues do we deal with on the employment helpline?
Day-to-day issues

What is the minimum notice period that an employee is entitled to?
Employees are entitled to a statutory minimum period of 1 week’s notice for every year that they have worked. This is subject to a maximum of 12 weeks regardless of what is stated in their employment contract.This minimum period only applies after an employee has been working for 1 month. Prior to this they can be they can be asked to leave at any time without being given notice.

What is garden leave?
When an employer asks an employee not to attend work during their notice period. The employee will continue to be paid and will remain bound by the terms in their employment contract. The employer may prohibit the employee from doing certain things or from contacting certain people during this period.

Documents
What information are employees entitled to under a data subject access request (DSAR)?
They are entitled to receive copies of any information relating to them that any organisation holds. They are also entitled to know whether any personal data is being processed, given a description of the personal data, the reasons it is being processed and whether it will be given to any other organisations/people. Additionally, when it is available, they are entitled to know the source of the data.The organisation is entitled to charge a £10 fee and they are required to respond to the request promptly and within 40 days.There are exceptions to the above, which may prevent a subject access request being complied with.

Are employees entitled to witness statements obtained by an employer during a grievance or disciplinary process?
Yes, employers should provide employees with all of the evidence, including witness statements in advance of a disciplinary hearing.

Employers are entitled to anonymise the name of the witnesses but this may undermine an employee’s right to properly challenge the evidence and the witnesses’ identity may not be kept anonymous if a matter reaches the Employment Tribunal.

Settlement agreements
What is a settlement agreement?
It is a legally binding contract under which the employee agrees to surrender their employment rights in return for a lump sum payment. They are usually confidential and contain various terms relating to matters such as holiday, notice and pensions.

Disciplinary/Performance issues
On what grounds can an employee be sacked on performance grounds?
If an employee’s capability comes under question, after a number of warnings and after being given the opportunity to improve, this may be a valid reason to dismiss them. However, an employer would still need to follow a fair procedure otherwise a otherwise fair dismissal may become unfair.

What is a performance improvement plan?
It is a process used by employers, usually in writing, that sets out what the employee needs to do to improve their capability. It is often done in conjunction with a formal disciplinary process and the employee is usually required to accept it.

What claims could an employee have if the employer does not follow a fair performance process?
As well as unfair dismissal mentioned above, an employee may have a claim for constructive dismissal, if they felt that they have no option but to resign (after lodging a grievance) because the performance procedure was so poor.

Restructuring and redundancies
How long does an employee need to have worked to qualify for a redundancy payment?
2 years of more

What is the maximum statutory redundancy payment?
As of 6th April 2017 it is £14,670

Is there a set process that has to be followed?
It depends on the individual company’s circumstances but in all situations management is critical.

What is the time limit for an employee to make a redundancy claim?
In relation to statutory redundancy payments, the time limit is 6 months from the date of the termination of the employment.

In relation to contractual redundancy payments, the time limit is 6 years from the date of the termination of the employment.

What is collective redundancy?
When an employer intends to make 20 or more of their employees who work at “one establishment” redundant in a 90 day period.
If a collective consultation is taking place then certain rules apply and the employer is required to carry out a consultation.

Transfer of undertakings (TUPE)
What does TUPE mean?
TUPE stands for Transfer of Undertakings (Protection of Employment) Regulations 2006.

What is the person of the TUPE regulations?
The Regulations protect employees’ rights when the business (of any size) that they work for “transfers” (merger or sold/bought) to a new employer and the identity of the employer changes. This is known as a “relevant transfer” and the rules relating to this are complex.
The regulations govern matters, such as whether or not the terms and conditions of employees’ contracts can be changed in such circumstances.

Do we advise on the relevant regulations before any tendering or proposed acquisition, sale or merger?
Yes

Equal pay, pay and bonus disputes
Can we assist you with pay disputes?
Yes we have extensive experience on negotiating on substantial pay and bonus disputes.
We can assess the terms surrounding pay and bonus and advise on the actions that can be taken if an employer does not act fairly.

Can employees make a claim for unlawful deductions of their wages?
Yes if the employer has made deductions which aren’t in accordance with the three conditions when it can be done so lawfully, although there are exceptions.

Is there is a time limit for these claims?
Yes an employee can only make a claim 3 months after the last deduction and they can only claim for 2 years of unlawful deductions.

Are men and women employees entitled to be paid the same?
Yes, if a man and a woman are doing equal work (the same or broadly the same) and work that is rated of equal value then they should be paid the same amount, including salaries and bonuses.

Are there different types of bonuses?
Yes there are discretionary and contractual bonuses and different rules apply to them. We can advise on these and what effect maternity leave and termination of employment haveon bonus entitlement.

Unfair/wrongful dismissal
What is unfair dismissal?
If an employer cannot show that the reason(or if more than one, the principal reason) they dismissed an employee falls within one of the categories of the Employment Rights Act 1996, and was within a range of reasonable responses, then it will be deemed to be unfair.

Additionally, an Employment Tribunal will consider whether in accordance with equity and the substantial merits of the casethe dismissal was unfair.

Even if an employer did have a justified reason for dismissing an employee, the dismissal may still be unfair if the employer did not follow the correct process.

There are some situations when a dismissal can be automatically unfair which we can advise on.

What is a polkey reduction?
When an employee succeeds in an unfair dismissal claim but their damages are reduced, if an employer can show that even if they had followed the correct processes, they still would have dismissed the employee for a justified reason.

What is the qualifying period for unfair dismissal claims?
An employee is protected from being unfairly dismissed if they have worked for an employer for 23 months and 3 weeks.
This period does not apply to cases where the dismissal was automatically unfair or when there is a discrimination claim.

What is constructive dismissal?
If an employer fundamentally breaches the terms of a contract and an employee resigns as a result of this (and do not accept the breach).

For example, if an employer forces a cut in salary, suspends an employee without good reason, imposes a grossly unfair/disproportionate disciplinary/performance process or fails to provide you with a safe working environment.

Should an employee work their notice when claiming constructive dismissal?
An employee can resign with or without notice but it depends on individual circumstances what is most suitable.

Family friendly rights/flexible working
What is flexible working?
A variation in normal working pattern that can be achieved via various structures.

Gross misconduct
What is gross misconduct?
When an employee commits a serious breach of their contract which means that the employment cannot continue. For example, when an employee commits a theft, is violent at work or is intoxicated.

Are employees required to disclosed allegations of misconduct that took place in their previous employment?
Unless there is an express term in the employment contract/other documentation requiring an employee to do so, then an employee is under no implied duty to inform their employer.

Restrictive covenants
Are restrictive covenants enforceable?
These covenants may be enforceable if a court deems that they go no further than is necessary to protect the legitimate business interests of an employer. They need to be reasonable to be enforced.

Whistleblowing
What is whistleblowing?
When an employee brings to the attention of their employer/other relevant organisation, information that relates to some wrongdoing and the employee is treated detrimentally because of this.
It is also known as ‘making a disclosure in the public interest’ and the law only protects those employees, who have made protected disclosures about wrongdoing they reasonably believe has occurred or is likely to occur which is not in the public interest.

What protection do whistleblowers have?
It is automatically unfair for an employee to be treated detrimentally or to be dismissed for raising such issues. This includes the employee being unfairly dismissed or victimised.

What qualifying period applies to employees making a claim for unfair dismissal for whistleblowing?
There is no qualifying period in such circumstances.

Discrimination, bullying and harassment
What is the legal definition of discrimination?
The Equality Act 2010 defines both direct and indirect discrimination.
Direct discrimination is when an employee is treated less favourably by their employer because of a protected characteristic that they have possess.
The protected characteristics are age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, sexual orientation.
Indirect discrimination is when an employer applies to an employee, a provision, criterion or practice which is discriminatory in relation to a protected characteristic of the employee.

What is the legal definition of bullying?
Although the definition of bullying may seem straightforward, there is no statutory definition of it. However, it usually involves behaviour that is malicious, intimidating and offensive that is intended to undermine, humiliate or injure the recipient.

What can an employee do to complaint about bullying?
The employee can raise a formal grievance against their employer and if the matter remains unresolved then they can resign and claim constructive dismissal.
Unless the bullying relates to a protected characteristic under the Equality Act 2010 the employee cannot bring a claim to the Employment Tribunal.

What is the legal definition of harassment?
Harassment is defined in the Equality Act 2010 as “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating and intimidating, hostile, degrading, humiliating or offensive environment for that individual the purpose or effect of violating an individual’s dignity or creating and intimidating, hostile, degrading, humiliating or offensive environment for that individual”

Holiday entitlement
How much holiday are employees entitled to?
Employees are entitled to a minimum of 28 days holiday per annum, including Bank Holidays. This also applies to part-time workers but it is calculated on a pro-rata basis.