Many employers were concerned when in the 2004 case of Dacas v Brook Street the Court of Appeal implied an employment contract between an agency worker and an end-user company. This meant that if working for the end-user for more than a year, the worker could bring an unfair dismissal claim when the arrangement came to an end.
This issue was revisited this month in the EAT case of Cairns v Visteon Ltd which held that, on the facts no contract existed between the worker and the end-user.
In Dacas, the worker had had no contract of employment with the employment agency so the Court had implied one with the end-user to give her statutory protection against unfair dismissal. In the present case, Mr Cairns had a contract with the agency. It was reasonable not to imply contract of employment with the end-user as Mr Cairns could already claim unfair dismissal against the agency.
This decision will therefore throw a life-line to employers who regularly employ agency workers for extended periods if they first make sure there are adequate contracts between the workers and the agencies.
See my firm website:
www.reculversolicitors.co.uk or
www.compromise-agreement.net
Friday, January 26, 2007
Wednesday, January 24, 2007
When do Employment Tribunals give awards for 'injury to feelings' and how much will they give?
Awards for ‘Injury to Feelings’ can be made by a Tribunal when there has been direct statutory discrimination. In practice this means when a Tribunal makes a finding of unlawful discrimination or harassment on the grounds of race, sex, disability, sexual orientation, religious belief or (from October 2006) age.
A similar award of ‘detriment’ can also be made when an employee has been subject to a detriment as a result of making a ‘protected disclosure’ under the so called whistleblowers act (incorporated into the Employment Rights Act 1996). However awards of injury to feelings cannot currently be made in claims of unfair dismissal, even if someone is forced out of a job as a result of bullying. There may be other avenues open to the claimant, for example a claim under the Protection from Harassment Act or for psychological damage, but I’m not going to go into those areas here.
It will up to the Tribunal to assess the actual injury to feelings to the Claimant in the particular case. No two people will take something the same way and equally it can be difficult to guess the amount an Employment Tribunal might award for injury to feelings.
In one reported case, Vento v Chief Constable of West Yorkshire Police, in 2002, the Court of Appeal stated that:
· The top band for injury to feelings should normally be between £15,000 and £25,000 in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment.
· The middle band of between £5,000 and £15,000 should be used for serious cases which do not merit an award in the highest band.
· Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence.
I understand that statistically, most such awards are under £5,000. In one reported case in 2005, Greig –v- Initial Security Ltd, the Scottish EAT indicated that there was no reason why awards for injury to feelings could not be less than £500, though the practice does appear to have arisen of awarding at least £500.
www.reculversolicitors.co.uk or
www.compromise-agreement.net
A similar award of ‘detriment’ can also be made when an employee has been subject to a detriment as a result of making a ‘protected disclosure’ under the so called whistleblowers act (incorporated into the Employment Rights Act 1996). However awards of injury to feelings cannot currently be made in claims of unfair dismissal, even if someone is forced out of a job as a result of bullying. There may be other avenues open to the claimant, for example a claim under the Protection from Harassment Act or for psychological damage, but I’m not going to go into those areas here.
It will up to the Tribunal to assess the actual injury to feelings to the Claimant in the particular case. No two people will take something the same way and equally it can be difficult to guess the amount an Employment Tribunal might award for injury to feelings.
In one reported case, Vento v Chief Constable of West Yorkshire Police, in 2002, the Court of Appeal stated that:
· The top band for injury to feelings should normally be between £15,000 and £25,000 in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment.
· The middle band of between £5,000 and £15,000 should be used for serious cases which do not merit an award in the highest band.
· Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence.
I understand that statistically, most such awards are under £5,000. In one reported case in 2005, Greig –v- Initial Security Ltd, the Scottish EAT indicated that there was no reason why awards for injury to feelings could not be less than £500, though the practice does appear to have arisen of awarding at least £500.
www.reculversolicitors.co.uk or
www.compromise-agreement.net
Saturday, January 20, 2007
Can Employers Recoup Overpayments of Salary from Employee’s Wages?
S13 of the Employment Rights Act 1996 states that no deductions may be made from an employees salary without his or her express written consent, or in the employment contract. This statutory provision however does not apply to deductions from a workers wages to recover an overpayment of wages or an overpayment of expenses.
In Home Office v Ayres [1992] IRLR 59, [1992] ICR 175, EAT Mr Ayres received an over payment of sick pay which his employer then sought to recoup. The Employment Appeals Tribunal held that it is possible to defend such a deduction on the grounds of ‘estoppel’ or change of position for the worse which, in accordance with the decision of the House of Lords in Lipkin Gorman (a firm) v Karpnale Ltd [1991] 2 AC 548, [1992] 4 All ER 512, ‘is available to a person whose position has so changed that it would be inequitable in all the circumstances to require him to make restitution, or alternatively to make restitution in full’. In this Mr Ayres had spent the money having received it in good faith and without knowledge that there was an overpayment. It could not lawfully be deducted.
Although this decision has subsequently been criticised, if an employer seeks to recoup the money from the employee, it may be possible for the employee to argue that s/he spent the money in good faith and without knowledge of there being an overpayment, and that in the circumstances the employer may not then lawfully recoup it from salary.
In any event, pursuant to the Employment Act 2002 (Dispute Resolution) Regulations 2004 the employer should follow a fair procedure before making any such deductions, which in summary consists of having a meeting with the employee on notice and considering any points the employee may have before reaching any decision. The employee should also be given the right to appeal if the decision is unfavourable to him or her.
In Home Office v Ayres [1992] IRLR 59, [1992] ICR 175, EAT Mr Ayres received an over payment of sick pay which his employer then sought to recoup. The Employment Appeals Tribunal held that it is possible to defend such a deduction on the grounds of ‘estoppel’ or change of position for the worse which, in accordance with the decision of the House of Lords in Lipkin Gorman (a firm) v Karpnale Ltd [1991] 2 AC 548, [1992] 4 All ER 512, ‘is available to a person whose position has so changed that it would be inequitable in all the circumstances to require him to make restitution, or alternatively to make restitution in full’. In this Mr Ayres had spent the money having received it in good faith and without knowledge that there was an overpayment. It could not lawfully be deducted.
Although this decision has subsequently been criticised, if an employer seeks to recoup the money from the employee, it may be possible for the employee to argue that s/he spent the money in good faith and without knowledge of there being an overpayment, and that in the circumstances the employer may not then lawfully recoup it from salary.
In any event, pursuant to the Employment Act 2002 (Dispute Resolution) Regulations 2004 the employer should follow a fair procedure before making any such deductions, which in summary consists of having a meeting with the employee on notice and considering any points the employee may have before reaching any decision. The employee should also be given the right to appeal if the decision is unfavourable to him or her.
Friday, January 19, 2007
Once a disciplinary warning lapses, can it be relied upon in later disciplinary proceedings?
The ACAS Code of Conduct states that disciplinary warnings should be disregarded after a fixed period of time, normally not more than one year.
In Diosynth Ltd v Thomson [2006] Mr Thompson was given a written warning for a safety violation, which was to remain on his record for 12 months. After the written warning had expired, there was a fatal explosion at the plant and it emerged that Mr Thompson was one of the people responsible. His employer dismissed him, taking into account the previous warning as they thought him unlikely to improve despite the training he had received.
Mr Thompson claimed unfair dismissal and the (Scottish) Court of Session agreed with him. The expiry provision in the ACAS Code of Practice is there for a good reason; an expired warning should not hang over an employee indefinitely. In this particular instance the employers had said that they would not have dismissed Mr Thompson if he had not received the earlier warning. His dismissal was therefore unfair.
In Diosynth Ltd v Thomson [2006] Mr Thompson was given a written warning for a safety violation, which was to remain on his record for 12 months. After the written warning had expired, there was a fatal explosion at the plant and it emerged that Mr Thompson was one of the people responsible. His employer dismissed him, taking into account the previous warning as they thought him unlikely to improve despite the training he had received.
Mr Thompson claimed unfair dismissal and the (Scottish) Court of Session agreed with him. The expiry provision in the ACAS Code of Practice is there for a good reason; an expired warning should not hang over an employee indefinitely. In this particular instance the employers had said that they would not have dismissed Mr Thompson if he had not received the earlier warning. His dismissal was therefore unfair.
Thursday, January 18, 2007
What is the Statutory Entitlement on Redundancy?
Basic statutory entitlement on redundancy is not that generous. What’s more, you don’t even get a statutory redundancy payment until you’ve been employed for two years. The statutory redundancy payment is a week’s pay to a maximum of (at the time of writing £290 before tax or £310 after 1st Feb 2007) x full years worked x 1.5 for years worked over the age of 41. There’s also a slight variation for years worked under the age of 21. For a ‘Ready Reckoner’ see the DTI website at http://www.dti.gov.uk/employment/employment-legislation/employment-guidance/page27698.html
On top of the statutory redundancy payment, employees are entitled to statutory notice. Once you’ve got three months service under your belt, you’re entitled to at least one week’s notice. Statutory entitlement to notice then accrues at the rate of one week for each full week worked to a maximum of twelve weeks. Contrary to what a lot of people think, there is no automatic right to receive a payment in lieu of notice.
Of course you may be entitled to receive more notice under your contract of employment. This is great if you’re being made redundant, but not so good if you’re leaving to take up a lucrative new job elsewhere. A lot of employers do make a payment in lieu of notice when making staff redundant, and if they do so, that payment can often be paid free of tax.
You may be somewhat unimpressed by your statutory entitlement on being made redundant. A lot of employers offer enhanced redundancy terms and if they do so, they’ll probably ask you to sign a compromise agreement.
See my firm website:
www.reculversolicitors.co.uk or
www.compromise-agreement.net
On top of the statutory redundancy payment, employees are entitled to statutory notice. Once you’ve got three months service under your belt, you’re entitled to at least one week’s notice. Statutory entitlement to notice then accrues at the rate of one week for each full week worked to a maximum of twelve weeks. Contrary to what a lot of people think, there is no automatic right to receive a payment in lieu of notice.
Of course you may be entitled to receive more notice under your contract of employment. This is great if you’re being made redundant, but not so good if you’re leaving to take up a lucrative new job elsewhere. A lot of employers do make a payment in lieu of notice when making staff redundant, and if they do so, that payment can often be paid free of tax.
You may be somewhat unimpressed by your statutory entitlement on being made redundant. A lot of employers offer enhanced redundancy terms and if they do so, they’ll probably ask you to sign a compromise agreement.
See my firm website:
www.reculversolicitors.co.uk or
www.compromise-agreement.net
Wednesday, January 17, 2007
What is a compromise agreement?
A 'Compromise Agreement' is an agreement prescribed by statute to bring to an end statutory claims (ie unfair dismissal or discrimination) arising out of the employee's employment or termination of employment. A simple agreement in writing signed by the employer will not prevent the ex employee from bringing a claim. In practice, compromise agreements tend to list out any conceivable claim that could possibly be imagined.
Basically the employee has to go off and get independent legal advice before signing away his/her legal rights. The solicitor should advise the employee on any potential claims arising so that the employee fully understands the legal issues, and the value of any potential claims, before signing away their rights. The solicitor who provides the advice must have a form of indemnity insurance in place, so that if the employee subsequently decides that s/he was poorly advised, s/he can sue the solicitor for negligence instead.
The solicitor will generally:
1. Advise the employee on whether any claims arise on the termination of employment
2. If so, advise the employee what those claims might be worth
3. In the light of that information, advise the employee whether the sum offered is reasonable in the circumstances
4. Explain the meaning and effect of the agreement to the employee and advise whether anything needs to be amended or changed.
Employers generally contribute to the employee’s costs of getting independent legal advice. The going rate is generally £250 + VAT, at least in the South of England, whilst for workers in the City the contribution is often nearer £500 + VAT. Modesty does not prevent me from mentioning my own micro-site www.compromise-agreement.net.
Employers would generally be well advised to enter into compromise agreements with the employees that they are dismissing if they are offering any sort of enhanced payments. Unless they do so, there is a potential risk that the employee may accept the money paid to them, but still pursue a claim in the Employment Tribunal or elsewhere.
In order for a compromise agreement to be binding, the following conditions must be satisfied:
· The agreement must be in writing
· It must relate to a particular complaint
· The employee must have received advice from a relevant independent adviser (normally a solicitor) as to the terms and effect of the proposed agreement and in particular its effect on his ability to pursue his rights before an employment tribunal.
· There must be in force, when the employer gives the advice, a contract of insurance or an indemnity covering the risk of a claim by the employee in respect of loss arising from the advice.
· The agreement must identify the adviser
· The agreement must state the conditions regulating compromise agreements under the relevant Act are satisfied.
If you currently use a standard Compromise Agreement precedent, you may have to update it in the light of Hinton v University of East London [2005]. The Court of Appeal held that potential claims must be identified either by description such as ‘unfair dismissal’ or by reference to the section of the statute giving rise to the claim. In other words, if your Compromise Agreement precedent doesn’t include a long list of all imaginable statutory claims, you may be in trouble.
In the Hinton case, the University forgot to list s47B ‘whistle-blower’ claims in those settled, and a general catch-all settlement provision was not effective. Hinton was therefore free to crack on with his whistle-blowing claim, no doubt much to the University’s annoyance.
For the taxable status of payments made to the employee via a Compromise Agreement click on our page on Redundancy Payments.
See my firm website:
www.reculversolicitors.co.uk or
www.compromise-agreement.net
Basically the employee has to go off and get independent legal advice before signing away his/her legal rights. The solicitor should advise the employee on any potential claims arising so that the employee fully understands the legal issues, and the value of any potential claims, before signing away their rights. The solicitor who provides the advice must have a form of indemnity insurance in place, so that if the employee subsequently decides that s/he was poorly advised, s/he can sue the solicitor for negligence instead.
The solicitor will generally:
1. Advise the employee on whether any claims arise on the termination of employment
2. If so, advise the employee what those claims might be worth
3. In the light of that information, advise the employee whether the sum offered is reasonable in the circumstances
4. Explain the meaning and effect of the agreement to the employee and advise whether anything needs to be amended or changed.
Employers generally contribute to the employee’s costs of getting independent legal advice. The going rate is generally £250 + VAT, at least in the South of England, whilst for workers in the City the contribution is often nearer £500 + VAT. Modesty does not prevent me from mentioning my own micro-site www.compromise-agreement.net.
Employers would generally be well advised to enter into compromise agreements with the employees that they are dismissing if they are offering any sort of enhanced payments. Unless they do so, there is a potential risk that the employee may accept the money paid to them, but still pursue a claim in the Employment Tribunal or elsewhere.
In order for a compromise agreement to be binding, the following conditions must be satisfied:
· The agreement must be in writing
· It must relate to a particular complaint
· The employee must have received advice from a relevant independent adviser (normally a solicitor) as to the terms and effect of the proposed agreement and in particular its effect on his ability to pursue his rights before an employment tribunal.
· There must be in force, when the employer gives the advice, a contract of insurance or an indemnity covering the risk of a claim by the employee in respect of loss arising from the advice.
· The agreement must identify the adviser
· The agreement must state the conditions regulating compromise agreements under the relevant Act are satisfied.
If you currently use a standard Compromise Agreement precedent, you may have to update it in the light of Hinton v University of East London [2005]. The Court of Appeal held that potential claims must be identified either by description such as ‘unfair dismissal’ or by reference to the section of the statute giving rise to the claim. In other words, if your Compromise Agreement precedent doesn’t include a long list of all imaginable statutory claims, you may be in trouble.
In the Hinton case, the University forgot to list s47B ‘whistle-blower’ claims in those settled, and a general catch-all settlement provision was not effective. Hinton was therefore free to crack on with his whistle-blowing claim, no doubt much to the University’s annoyance.
For the taxable status of payments made to the employee via a Compromise Agreement click on our page on Redundancy Payments.
See my firm website:
www.reculversolicitors.co.uk or
www.compromise-agreement.net
Tuesday, January 16, 2007
What will a Tribunal award me for Unfair Dismissal?
The calculation of losses is not a straight forward matter. This is simply a summary of the kind of issues that may be covered in a compensatory award made by a Tribunal. There are circumstances in which the Tribunal may reduce elements of the award by up to 100% in exceptional circumstances which I shall not delve into here.
The main purpose of an award of damages is to put the employee back in the position that he or she would have been had s/he not been unfairly dismissed. This is the object of the Compensatory Award:
Compensatory Award
The compensatory award compensates the employee for the loss of net earnings, benefits etc from the date of dismissal until the date that s/he finds suitable alternative employment. The employee will have to show what steps s/he has taken to find suitable alternative employment by producing letters, emails, application forms, rejection letters etc showing that /she has actually been actively looking for another job (rather than sitting at home waiting for the Tribunal to make it’s award). This is likely to comprise of:
· Loss of net pay (after deductions of tax and national insurance) for the number of weeks the employee has been out of work to the date of the Tribunal Hearing.
· Loss of net pay (after deductions) from the hearing date until the date the employee is expected to have found suitable alternative employment (not normally more than 6 months)
· Loss of other benefits (for example health insurance etc) for the same period.
· Loss of pension rights (this can be difficult to calculate) for the same period.
· Costs associated with finding another job (such as travel, stationary etc)
· Loss of ‘statutory rights’ (normally up to £300). This recognises the fact that s/he will have to work in the new job for a year before getting statutory protection from unfair dismissal)
Compensatory awards for most people are not great, and are unlikely to approach the statutory cap (£56,800 at the time of writing but £58,400 from 1st February 2006 (reviewed annually)). Some older people may argue that they will effectively be out of work until their retirement date, but Tribunals are reluctant to accept such an argument without compelling evidence.
Basic Award:
The basic statutory award on unfair dismissal largely the same as a statutory redundancy payment. However entitlement arises after one year’s employment. This will be a week’s pay to a maximum of (£280 before tax, but from the 1st February 2006; £290 before tax (reviewed annually)) x full years worked x 1.5 for years worked over the age of 41. There’s also a slight variation for years worked under the age of 21. For a ‘Ready Reckoner’ see the DTI website for statutory redundancy payment calculations at http://www.dti.gov.uk/employment/employment-legislation/employment-guidance/page27698.html
Injury to Feelings:
Tribunals will not make an award of ‘injury to feelings’ in statutory claims of unfair dismissal. However awards for injury to feelings may be made for unlawful discrimination.
Statutory Uplift / Reduction in the Award:
If the employee has failed to i) cooperate in the statutory dismissal procedure or ii) failed to complete the statutory grievance procedure before issuing proceedings (other than in dismissal cases), the Tribunal will reduce the award by between 10% and 50%
Likewise if the employer failed to i) cooperate in the statutory grievance procedure or ii) follow the statutory dismissal procedure, the Tribunal will reduce the award by between 10% and 50%.
See my firm website:
www.reculversolicitors.co.uk or
www.compromise-agreement.net
The main purpose of an award of damages is to put the employee back in the position that he or she would have been had s/he not been unfairly dismissed. This is the object of the Compensatory Award:
Compensatory Award
The compensatory award compensates the employee for the loss of net earnings, benefits etc from the date of dismissal until the date that s/he finds suitable alternative employment. The employee will have to show what steps s/he has taken to find suitable alternative employment by producing letters, emails, application forms, rejection letters etc showing that /she has actually been actively looking for another job (rather than sitting at home waiting for the Tribunal to make it’s award). This is likely to comprise of:
· Loss of net pay (after deductions of tax and national insurance) for the number of weeks the employee has been out of work to the date of the Tribunal Hearing.
· Loss of net pay (after deductions) from the hearing date until the date the employee is expected to have found suitable alternative employment (not normally more than 6 months)
· Loss of other benefits (for example health insurance etc) for the same period.
· Loss of pension rights (this can be difficult to calculate) for the same period.
· Costs associated with finding another job (such as travel, stationary etc)
· Loss of ‘statutory rights’ (normally up to £300). This recognises the fact that s/he will have to work in the new job for a year before getting statutory protection from unfair dismissal)
Compensatory awards for most people are not great, and are unlikely to approach the statutory cap (£56,800 at the time of writing but £58,400 from 1st February 2006 (reviewed annually)). Some older people may argue that they will effectively be out of work until their retirement date, but Tribunals are reluctant to accept such an argument without compelling evidence.
Basic Award:
The basic statutory award on unfair dismissal largely the same as a statutory redundancy payment. However entitlement arises after one year’s employment. This will be a week’s pay to a maximum of (£280 before tax, but from the 1st February 2006; £290 before tax (reviewed annually)) x full years worked x 1.5 for years worked over the age of 41. There’s also a slight variation for years worked under the age of 21. For a ‘Ready Reckoner’ see the DTI website for statutory redundancy payment calculations at http://www.dti.gov.uk/employment/employment-legislation/employment-guidance/page27698.html
Injury to Feelings:
Tribunals will not make an award of ‘injury to feelings’ in statutory claims of unfair dismissal. However awards for injury to feelings may be made for unlawful discrimination.
Statutory Uplift / Reduction in the Award:
If the employee has failed to i) cooperate in the statutory dismissal procedure or ii) failed to complete the statutory grievance procedure before issuing proceedings (other than in dismissal cases), the Tribunal will reduce the award by between 10% and 50%
Likewise if the employer failed to i) cooperate in the statutory grievance procedure or ii) follow the statutory dismissal procedure, the Tribunal will reduce the award by between 10% and 50%.
See my firm website:
www.reculversolicitors.co.uk or
www.compromise-agreement.net
Should I bring a Constructive Dismissal claim?
Frankly, constructive unfair dismissal claims are often difficult to win. I personally think it’s frequently better for an employee to use the threat of a constructive dismissal claim to negotiate an agreed severance, rather than resign, lose an income, and risk an uncertain outcome in the Employment Tribunal months down the line.
If you’re wondering what constructive unfair dismissal is, it’s when the employee resigns in response to a breach of an express or implied term or condition of employment by the employer. This is nothing if not a complex area of law, fraught with difficulties, but in general terms In order for an employee to be able to claim constructive dismissal, four conditions need to be met:
· There must be a breach of contract by the employer. This may be actual or anticipatory.
· The breach must be sufficiently serious to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving
· The employee must leave in response to the breach
· The employee must not delay too long in terminating the contract in response to the employers breach, otherwise s/he may be deemed to have waived the breach.
If the employee hasn’t been paid for the last three months, this is almost certainly going to be grounds to resign and claim constructive dismissal. In the bulk of cases, it’s rather less clear cut. Often employee’s will rely on breach of the implied term of ‘trust and confidence’ which underlies all employment relationships. There may be a one off breach, or a series of minor breaches over time which cumulatively destroy the employment relationship.
It’s now necessary to bring an internal grievance before issuing a constructive dismissal claim. This may be done either before or after the resignation.
See my firm website:
www.reculversolicitors.co.uk or
www.compromise-agreement.net
If you’re wondering what constructive unfair dismissal is, it’s when the employee resigns in response to a breach of an express or implied term or condition of employment by the employer. This is nothing if not a complex area of law, fraught with difficulties, but in general terms In order for an employee to be able to claim constructive dismissal, four conditions need to be met:
· There must be a breach of contract by the employer. This may be actual or anticipatory.
· The breach must be sufficiently serious to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving
· The employee must leave in response to the breach
· The employee must not delay too long in terminating the contract in response to the employers breach, otherwise s/he may be deemed to have waived the breach.
If the employee hasn’t been paid for the last three months, this is almost certainly going to be grounds to resign and claim constructive dismissal. In the bulk of cases, it’s rather less clear cut. Often employee’s will rely on breach of the implied term of ‘trust and confidence’ which underlies all employment relationships. There may be a one off breach, or a series of minor breaches over time which cumulatively destroy the employment relationship.
It’s now necessary to bring an internal grievance before issuing a constructive dismissal claim. This may be done either before or after the resignation.
See my firm website:
www.reculversolicitors.co.uk or
www.compromise-agreement.net
What is Redundancy?
This simple question has been the subject of some controversy over time and may well continue to be so in the future. I’m not even going to begin to give a definitive answer here.
'Redundancy' is a potentially fair reason to terminate an employee's employment. An employee who is dismissed shall be taken to be dismissed by reason of redundancy if:
· The dismissal is wholly or mainly attributable to the fact that the employer has ceased or intends to cease to carry on the business for the purposes of which the employee was employed by him, or to carry on that business in the place where the employee was so employed, or
· The fact that the requirements of that business for employees to carry out work of a particular kind or for employees to carry out work of a particular kind in the place where the employee was employed have ceased or diminished or are expected to cease or diminish.
‘Redundancy’ falls into several broad categories including:
· Disappearing business
· Disappearing workplace
· Disappearing job
· Requirements of the workplace
· The need for fewer employees to do the same amount of work
· Reduced output
· Change in the nature of the job.
For example, the following situations are quite likely to be real redundancies:
· The organisation wishes to close a particular branch or office.
· The organisation stops producing a particular product, or providing a particular service
· The organisation's business has shrunk.
· The organisation no longer requires employee's to carry out a particular job or function.
On the other hand the following situations are unlikely to be a real redundancy situation:
· The organisation wants to use this as an excuse to remove an employee who is not performing adequately in the role or does not fit in for whatever reason.
· The organisation wants to replace an employee with someone on a lower rate of pay.
Remember, even if there is a real redundancy situation, it is essential that the employer follow a fair redundancy procedure. Frankly, a lot of employers get this process wrong and end up with claims that could otherwise have been avoided if a little more care had been taken at the outset.
See my firm website:
www.reculversolicitors.co.uk or www.compromise-agreement.net
'Redundancy' is a potentially fair reason to terminate an employee's employment. An employee who is dismissed shall be taken to be dismissed by reason of redundancy if:
· The dismissal is wholly or mainly attributable to the fact that the employer has ceased or intends to cease to carry on the business for the purposes of which the employee was employed by him, or to carry on that business in the place where the employee was so employed, or
· The fact that the requirements of that business for employees to carry out work of a particular kind or for employees to carry out work of a particular kind in the place where the employee was employed have ceased or diminished or are expected to cease or diminish.
‘Redundancy’ falls into several broad categories including:
· Disappearing business
· Disappearing workplace
· Disappearing job
· Requirements of the workplace
· The need for fewer employees to do the same amount of work
· Reduced output
· Change in the nature of the job.
For example, the following situations are quite likely to be real redundancies:
· The organisation wishes to close a particular branch or office.
· The organisation stops producing a particular product, or providing a particular service
· The organisation's business has shrunk.
· The organisation no longer requires employee's to carry out a particular job or function.
On the other hand the following situations are unlikely to be a real redundancy situation:
· The organisation wants to use this as an excuse to remove an employee who is not performing adequately in the role or does not fit in for whatever reason.
· The organisation wants to replace an employee with someone on a lower rate of pay.
Remember, even if there is a real redundancy situation, it is essential that the employer follow a fair redundancy procedure. Frankly, a lot of employers get this process wrong and end up with claims that could otherwise have been avoided if a little more care had been taken at the outset.
See my firm website:
www.reculversolicitors.co.uk or www.compromise-agreement.net
What can a companion at a disciplinary or grievance hearing say or do?
Employees have the statutory right to be accompanied at disciplinary and grievance hearings by a colleague or a trade union representative. The statutory right does not extend to legal representatives or family members. If the employee makes a request to be accompanied, s/he should do so reasonably. For example it may not be reasonable to choose a companion who is in geographically remote location when a suitable person is available at the place of work. It would also not be reasonable to choose a companion whose presence would prejudice a hearing or who has a conflict of interest. If the employee’s chosen companion cannot attend on the date proposed, the employee may offer an alternative time and date so long as it is reasonable and is no more than five working days later than the date proposed by the employer.
In October 2004 the Employment Relations Act 2004 extended the role of the companion so that the companion may now:
· put forward the employee's case
· sum up the case
· respond on the employee's behalf to any view expressed at the hearing; and
· confer with the employee during the hearing
However the companion still cannot answer questions on the employee's behalf.
It all sounds a bit like a mini court case doesn’t it?
In October 2004 the Employment Relations Act 2004 extended the role of the companion so that the companion may now:
· put forward the employee's case
· sum up the case
· respond on the employee's behalf to any view expressed at the hearing; and
· confer with the employee during the hearing
However the companion still cannot answer questions on the employee's behalf.
It all sounds a bit like a mini court case doesn’t it?
Changes Afoot
1st February 2007: Tribunal Award Limits - The maximum weeks pay for the purposes of calculating statutory redundancy payments (and basic awards in unfair dismissal) will rise to £310 pw (from £290)
Also the maximum compensatory award in unfair dismissals will rise to £60,600 (from £58,400). However only a minority of Claimants get the maximum award.
1st April 2007: Flexible Working - It’s commonly known that subject to certain conditions parents of children under the age of 6 or disabled children under 18 have the statutory right to ask to work flexibly
New regulations coming into effect on the 1st April 2006 will enable employees to make a request for flexible working if the employee is or expects to be caring for the husband / wife / civil partner of the employee over the age of 18 and in need of care.
Subject to the employee having 26 weeks continuous employment, the employer then has to follow a set procedure to consider the request, but is not obliged to agree it.
© James Carmody. Reculver Solicitors. Tel 0207 324 6271, Fax 0207 477 2276, 12-16 Clerkenwell Road, London EC1M 5PQ* www.reculversolicitors.co.uk.
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