Employment Law

Common questions about Employment Law.

Questions:

> Do employees need to have employment contracts?

If you are an employee who has been working for your employer for longer than one month, you have the right to receive a written statement of employment particulars. This must be provided by your employer within two months of you starting, even if you are going to work for them for less than two months. The written statement will set out some of your main employment rights.

The minimum requirement is set out is contained within section 1 of the Employment Rights Act 1996.  This is known as the 'principal statement' and must include:

  • your name and your employer's name
  • your job title or a brief job description
  • the date when your employment began
  • your pay rate and when you will be paid
  • your hours of work
  • your holiday entitlement
  • where you will be working (if you are based in more than one place it
  • should say this along with your employer's address)
  • sick pay arrangements
  • notice periods
  • information about disciplinary and grievance procedures
  • any collective agreements that affect your employment terms or conditions pensions and pension schemes
  • if you are not a permanent employee how long your employment is expected to continue, or if you are a fixed term worker the date your employment will end
> What is TUPE?

This stands for the Transfer of Undertakings (Protection of Employment) Regulations. Where an undertaking is transferred from one business to another all Employees formally employed by the first company are automatically transferred to the other. The "new" Employer takes on the Employees on their existing terms and conditions.

The Regulations impose obligations on information and consultation. Failure to comply could result in affected Employees receiving up to 13 weeks salary.

In the due diligence process care must be exercise in identifying Employees likely to be affected by business transfer, and statutory obligations then observed.

More detailed guidance on TUPE can be found on the Department for Business Innovation and Skills website: http://www.bis.gov.uk/tupe

> What is the national minimum wage?

Increases in the national minimum wage will take effect from 1 October 2010. The new hourly rates are as follows:

  • Standard (adult) rate (the government will extend this rate to apply to workers aged 21 and over): £5.93 (rising from £5.80).
  • Development rate (workers aged between 18 and 20): £4.92 (rising from £4.83).
  • Young workers rate (workers aged under 18 but above the compulsory school age who are not apprentices): £3.64 (rising from £3.57).
  • Apprentices: a new minimum wage for apprentices will also be introduced of £2.50. This will apply to apprentices under 19 or those aged 19 and over but in the first year of their apprenticeship. The value of the accommodation offset also increases from £4.51 to £4.61.

(this information is correct as at 28th September 2010)

> What is the difference between Unfair Dismissal and Wrongful Dismissal?

Wrongful Dismissal
Wrongful Dismissal is where an employee has been dismissed without notice or an employee has not been given the right amount of notice, or the employment is terminated contrary to the contract. Wrongful Dismissal is based upon the actual contract between the employer and the employee and so breaches of that contract by the employer could give the employee the right to sue for Wrongful Dismissal.

There is no requirement to have been employed for at least one year in order to bring a claim.

Unfair Dismissal
Unfair Dismissal is when the following happens:

1. An employee is dismissed and they qualify for the right to bring an Unfair Dismissal claim.
2. The employer did not have a fair reason to dismiss the employee.
3. Or, the employer did have a fair reason, but the matter was dealt with unfairly.

Unfair dismissal is a statutory right as it is covered by an Act of Parliament. To qualify for Unfair Dismissal protection an employee must have the following:

1. The employee must be working full or part-time, the actual amount of hours worked per week is irrelevant. Self-employed workers are excluded. 2. At least 1 year's continuous employment. (note that there are certain exceptions)
3. Below 65 or the normal retirement age for the job at the date of their dismissal. (note that there are certain exceptions)
4. Not of an excluded category, eg. the armed forces, police and share fishermen.

> How long is it before an employee is entitled to claim redundancy pay?

An employee can claim redundancy pay after 2 years service. Note that service is not counted below 18 years of age.

> What are the exceptions to the "one year rule" for unfair dismissal?

To claim unfair dismissal you should normally have 1 year continuous employment. However you may bring a claim before this period if your dismissal relates to Trade Union activities. You may also bring a claim without 1 years continuous employment if your dismissal is connected to your pregnancy or your maternity rights.

Other dismissals where 1 years continuous employment is not required to bring an unfair dismissal claim: If you were asserting your employment rights; if you were observing health and safety.

If you are dismissed just before the 1 year period, your statutory notice may be added to give you 1 years service.

> I have just caught an employee red- handed stealing from the stock room. Can I terminate his employment immediately?

If you catch an employee red handed you are entitled to dismiss the employee immediately under the statutory dismissal procedure. You must write to the employee to tell him why he has been dismissed and also give him the right of appeal. However it is advisable that you follow the full statutory dismissal procedure as outlined by ACAS.

> Does an employer have to give you a reference?

An employer is not under a duty to give an employee a reference. However if an employer does give an employee a reference, they have a duty not to provide one which is factually incorrect, or misleading. An employer who gives a reference can be liable either to the employee personally or the indeed a future employer.

> What should I do if I have a grievance with my employer?

There are certain procedures that must be followed if you want to raise a grievance with you employer or indeed if you employer wants to discipline or dismiss an employee, the employer and, or, the employee must follow the 'statutory dispute resolution procedures'

Before an employee can take their grievance to an employment tribunal, they must first take steps to try and resolve the situation with their employer by engaging in the grievance procedure. If an employee is not satisfied with the outcome of the grievance procedure after appeal the employee may then be able to raise their grievance in an employment tribunal.

Contact us

O'Neill Patient Solicitors LLP
Chester House, 2 Chester Road, Hazel Grove,  Stockport, Cheshire, SK7 5NT

Telephone:

0161 694 3000 / 0161 483 8555

E-mail:

info@oneillpatient.co.uk

Fax:

0844 576 2140 (we do not accept service by fax or email)