Employer Lawyers & Solicitors

If you are experiencing problems at work that cannot be resolved, you may want to make a claim to an Employment Tribunal.

An Employment Tribunal takes place to resolve employment disputes. It is typically less formal than a court case.  Usually a single employment law judge will decide the case after hearing arguments from both sides.

Judgments given in the Employment Tribunal are legally binding.

In most cases, an employee must have 2 years’ continuous service before they can pursue a claim for unfair dismissal.  There are some exceptions to the 2 year rule though so it is always worth checking.  Of course in discrimination claims, there is no requirement for a continuous period of employment as all employees are protected under the Equality Act 2010.

Yes, although as part of considering the alternatives to redundancy, one of the initial steps should be to reduce the use of agency staff.

If an employer was to dismiss a member of staff due to a personality clash, they would need to prove that it was causing substantial disruption to the business and that they had taken significant steps to try to solve the problem before deciding to dismiss.

If the reasons are valid, an employee who is pregnant or on maternity leave can still be dismissed by reason of redundancy. However, if the dismissal is connected to the pregnancy or maternity leave in any way, the dismissal is deemed automatically unfair.

When undertaking a redundancy process, an employer must firstly consider whether there is a genuine case of redundancy, and secondly must carry out a fair process.  When considering making employees who are on maternity leave redundant, an employer must to not take into account time off whilst on maternity leave as they could open themselves up to a claim for unfair dismissal and sex discrimination. 

If redundancy arises while an employee is on maternity leave and it is not practicable for the employer to continue to employ the employee under their existing contract, the employer should offer a suitable alternative vacancy if one is available.

You are not required to provide a reference for employees unless there is an express term in their contract of employment.

If you decide to provide a reference, you must take reasonable care to ensure that the information you provide is accurate and fair without being misleading.

If an employee wishes to see a copy of a reference that has been provided to their prospective employer, they could make a data subject access request in accordance with the General Data Protection Regulations (GDPR). This request can be sent to either the current/most recent employer who gave the reference, or to the prospective employer who receives the reference. They could also send the request directly to the person responsible for writing the reference.

If an employee believes that the reference was provided was inaccurate, they could bring various claims for breach of trust and confidence, false misstatement, and discrimination (if they have a protected characteristic) among others.

You also have a duty to the prospective employer to give an accurate reference. If false information is given, the prospective employer is entitled to bring a claim for negligent misstatement.

It is therefore important that any reference you provide is wholly accurate to avoid future claims regarding false or inaccurate information being given.

In deciding whether performance issues should be dealt with through a capability procedure or a disciplinary procedure, you need to decide whether the poor performance amounts to misconduct or is indeed best placed as capability matter.

There is a difference between a capability procedure and a disciplinary procedure, and both capability and conduct are potentially fair reasons for dismissing an employee. It is important that a fair procedure is followed for those with over 2 year’s service to reduce the risk of an unfair dismissal claim.

A disciplinary procedure is usually used for issues of conduct. Those are where the employee has chosen to act in a particular way which is against the company’s policies. A capability procedure is used where the employee happens to have acted in a particular way but may not be able to act differently. A deliberate decision to behave in a particular way is likely to be a disciplinary issue whereas an attempt to behave appropriately which does not reach the required standard would be an issue of capability.

The difference in practical terms is the nature of the procedure that then follows. A disciplinary procedure dealing with misconduct is more about corrective behaviour and perhaps punishment of wrong doing. This could be through a written warning or perhaps a demotion. A capability procedure is more benign and looks at encouraging better performance and offering support and resources to enable the behaviour and outcomes to improve.

If the poor performance is solely due to a lack of understanding, resources and/or training then poor performance issues should be dealt with through a capability procedure as this offers where possible the support and training required for the employee to improve.

Sometimes you may have difficulty in deciding whether a reason for poor performance is due to capability or conduct. For example, in cases of repeated mistakes, it may be possible to characterise the reason as capability or conduct. Provided the employer makes it clear to the employee what the allegation is and the matter is investigated correctly and an appropriate procedure and outcome is reached, an employer is unlikely to be penalised by any tribunal for applying the incorrect label.

In general there is no legal requirement for an employer or ex-employer to provide a reference for an employee or ex-employee. Nevertheless, you will need to ensure that a policy is in place, specifying how you deal with references, and make sure this is applied consistently throughout your workplace. Inconsistency when it comes to references means you could potentially face claims of discrimination, or a breach of the term of mutual trust and confidence.

When providing a reference a duty is owed to the employee/ex-employee to take reasonable care to ensure that that the information contained in the reference is true, accurate and fair; and does not give a misleading impression. There is no requirement to provide any detail in a reference or for it to be comprehensive. If providing a brief factual reference with dates and job role, be sure to explain that it is your policy to only provide references in this format.

Care must be taken when providing a reference to ensure that the contents of the reference are not discriminatory. Comments about performance, attendance or sickness absence should be considered carefully as there is a risk these comments could amount to disability discrimination.

It is up to you whether or not employees have to work on bank holidays as there is no statutory right for employees to take bank holidays off work.  Any right to time off will depend on the terms of their contract of employment.

If an employee has to work bank holidays because their contract does not have a provision for them being holiday, there is no statutory right to extra pay.  Again a right to any extra pay would depend on the terms of their contract of employment.

You can ask your employees to take annual leave on a bank holiday; under the Working Time Regulations, you can give notice to your employees to take annual leave on specified dates.  Unless there is an agreement to the contrary, you should give notice twice the length of the holiday period that the employee is to take.

You should be aware of the bank holiday rights of part-time and shift workers, workers on maternity leave, paternity, and adoption and shared parental leave.  Part time workers and those on these types of leave have the right not to be treated less favourably than a comparable full time worker which does include entitlement to bank holidays.  In this instance the best approach it to give part time employees a pro-rated allowance of paid bank holidays, irrespective of whether or not they normally work on the days on which bank holidays fall.