Stevens provide advice to both employers and employees on all aspects of employment law. If you are an employee we provide advice at reduced rates. Both employers and employees may make initial contact at our free surgery at Haverhill and Saffron Walden. The surgery runs from 10am to 11am once a fortnight on a Monday morning in Haverhill and 10am to 11am once a month on a Friday morning in Saffron Walden. Please contact us to arrange an appointment.
Everyone who provides employment to others is going to need legal advice at some point. Even if you are a sole proprietor who takes on just one employee to help in your business, you will need to consider an employer's legal obligations. For the larger employer, personnel and human resources can at times appear to be a frustrating and time consuming nightmare. Ready access to "off the cuff" legal advice can save dividends in the long term.
Stevens will tailor advice to the needs of your business. We can for example provide you with a model Contract of Employment (on paper, on disk or via email) which has been specially adapted to the needs of your business and which you can then adapt for each member of staff. We can advise on your disciplinary and grievance procedures, work hours, part-timers rights, correct redundancy procedures. We can help you draft your Staff Handbook.
Our aim is "prevention rather than cure" so as to help you prevent litigation wherever possible. That said conflicting ideas and personalities may lead to a situation going wrong. If you are facing a crisis or difficult decision making we are just a telephone call or email away. Just get in touch! At the end of the day, if you part company with staff on agreed terms, we can advise on the Compromise Agreement which will be essential to protect your position.
If you face proceedings before an Employment Tribunal, we can either provide advice to allow you to represent yourself with greater confidence or we can provide a full representation service.
There are so many situations where you may feel you need to be better informed about your rights as an employee. If you are having problems at work, discrete legal advice in the background may help you to resolve the situation. The kind of situations where this might apply would include:
In many of these situations a solicitor can help you to clarify your rights in the hope that you can then sresolve the situation direct with your employer.
However, there are going to be situations which go beyond this and where your job is at risk or where you have been given notice. If that happens you need to consult a Citizen's Advice Bureau or a solicitor without delay. There are strict time limits if you wish to make an application for compensation to the Employment Tribunal, so it is vital you take advice early.
You also need to be aware that there are moves afoot to reduce compensation if you have failed to go through all the company's internal disciplinary procedures. Take advice on this as soon as you can. Time may not be on your side. Contact us
There are a number of different types of claim which may apply in the event of a dismissal. Whether you are an employer or an employee, it will help if you understand which type of claim is likely to apply in any given situation.
Wrongful Dismissal occurs where an employee is dismissed without having been given their correct contractual or statutory notice entitlement. The statutory minimum requirements are:
Your contract may entitle you to more than that, so the first place to look is in the contract. If the notice period (or pay in lieu of notice) is insufficient, you can claim the balance as a "wrongful dismissal" claim. In practice,unless you are on a fixed term contract, wrongful dismissal will not usually attract compensation of more than a few weeks' worth salary. You also need to know that in the event of "gross misconduct" there may be no entitlement to notice pay. Wrongful dismissal claims may be made to either the County Court or to an Employment Tribunal but time-limits are more severe before the Tribunal.
You may wish to consider a claim for Unfair Dismissal if your employer has dismissed you in unfair circumstances or where the dismissal was appropriate but the employer did not follow the correct procedures. Unfair dismissal claims may only be made in the Employment Tribunal. There is a strict time limit of 3 months from your "effective date of dismissal" (you may need legal advice to work out when that date falls) and if you do not claim within the 3 month period your claim will be refused. You also have to show you have been employed for at least 12 months before you were dismissed. Assuming you fall within the right criteria and that your dismissal is found to have been unfair, compensation will fall into two elements: a "basic" award which is for the same figure as a redundancy payment (see Redundancy) and a "compensatory" award which provides compensation for loss of income, benefits and security of employment for a period decided on by the tribunal.
If a tribunal makes a finding that a dismissal has been unfair but considers the employee's behaviour has contributed to the situation, the award may be reduced by a percentage figure representing contributory conduct. You also need to be aware that welfare benefits, in particular Income Support and Job Seekers Allowance claimed during the period following the termination of employment, will be re-payable to the Benefit Agency out of any award made by a Tribunal (but not if you manage to reach a negotiated settlement).
The role of the Advice and Arbitration Conciliation Service (ACAS) in unfair dismissal and other Tribunal claims is crucial. Whichever side you are on ACAS can assist you to attempt a negotiated settlement in order to avoid the matter going to a full Tribunal hearing. If you instruct a solicitor, your solicitor will also be working to try and reach an agreement, in order to maximise the amount of the settlement figure which you retain personally and in order to reduce your outlay on legal costs.
If all else fails and a Tribunal hearing is inevitable, it may be possible to arrange to represent you on a "No Win No Fee" basis subject to a risk assessment which will take into account your chances of success.
Constructive Dismissal arises where the employee is forced to resign due to a serious breach of the contract of employment on the part of the employer. The breach must be a fundamental one. For example if the employer fails to pay the employee's wages; or if the employer makes it impossible for the employee to do his or her job. Constructive Dismissal claims may therefore allow an employee to make an Unfair Dismissal claim to an Employment Tribunal where on the face of it there has not been a dismissal at all, the employee having simply walked out or resigned. However, in practice constructive dismissal claims tend to be a good deal more difficult to argue successfully than a claim based on unfair dismissal where there has been a clear cut dismissal.
Redundancy can only arise where there is a redundancy situation i.e where due to the circumstances of the business, the company no longer needs someone to do the job. There are various requirements placed on the employer for example to consult; to select candidates for redundancy fairly and to offer suitable alternative employment within the company if this is available. If the employer fails in these obligations, the dismissal may amount not only to a redundancy but also to an unfair dismissal.
Assuming the redundancy procedures have been properly carried out and the employee has been fairly selected, compensation is fixed as follows:
The figure for "gross pay" is subject to a top limit. In practice you need to count backwards, to calculate the maximum award. You also need to have worked for a continuous period of at least 12 months before being eligible to claim at all.
There is a time-limit of 6 months in which to make a claim for a redundancy payment.
You will need a form "ET1" which you can obtain from any Employment Tribunal, from a solicitor or from a Citizen's Advice Bureau. The form is quite straightforward but it helps if you know what type of claim you are trying to make. It is a good idea to speak to a solicitor first but if you are up against a time-limit your priority must always be to get the form into the tribunal within the given time period. There is no fee payable. You should keep a copy for yourself.
If you are unhappy about a decision made by the Employment Tribunal you may be able to appeal. However, you may only do so on a point of law, not on a point of fact. You will first need to obtain a copy of the Full Reasons from the Employment Tribunal. Your solicitor can then advise as to whether there are likely to be grounds for appeal. The Court Service web-site provides forms, information and reports of recent decisions made by the Employment Appeal Tribunal. Please see www.employmentappeals.gov.uk
If you are still confused about the different types of dismissal here is a little story which may help to enlighten you.
A Cosmetic Surgery Practice employs a Doctor by the name of Dr Snips and a Nurse by the name of Miss Bedwarmer. The owner of the practice has taken a dislike to Miss Bedwarmer's over friendly bedside manner and to Dr Snips method of performing operations dressed in a clown's outfit. Mr Lippy decides to sack Dr Snips on the spot for his antics and to teach Miss Bedwarmer a lesson by deducting some of her pay.
What can the lovely Miss Bedwarmer and the funny Dr Snips do?
Miss Bedwarmer's pay has been deducted without her prior permission. Paying your staff is obviously seen as fundamental to an employment contract. The Surgery has breached an important term in Miss Bedwarmer's Contract of Employment for which Miss Bedwarmer may be able to resign and claim unfair dismissal on the basis of constructive dismissal. She will also have a claim for the balance of her wages which have unlawfully been withheld.
So far as Dr Snips is concerned, although the Surgery could claim that his antics warranted dismissal, nevertheless Dr Snips was dismissed without the Surgery having followed any form of disciplinary procedure. For this Dr Snips may be able to claim unfair dismissal but he is likely to find any award made is reduced by a percentage to reflect his inappropriate behaviour.
Clearly Mr Lippy needed some legal advice. He would have been wise to consult solicitors long before all his problems with Miss Bedwarmer and Dr Snips arose. He could then have devised a disciplinary procedure, had that incorporated in the Surgery Practice Manual and made sure he implemented it when dealing with his troublesome staff. Instead he now faces the possibility of costly claims against the Surgery for their respective grievances.
The internet provides a wealth of material on Employment law. Please refer to our links section.
If you have any queries about an employment related problem, please contact us.