Employment law common issues
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What is a grievance?
If an employee has been treated badly by an employer or work colleague, the employee has a right to raise a grievance setting out the unfair treatment.
On receipt of the grievance, the employer will normally invite the employee to a meeting to discuss the grievance. After the meeting, the employer will usually provide a written decision. The employee will normally be given the right to appeal against the employer's decision.
Laboro Lawyers can advise and prepare written grievances and manage the grievance process.
What is a disciplinary?
If an employer believes that there are issues relating to an employee's conduct (eg theft), capability (eg sickness), or performance (eg job failings), the employee may commence disciplinary proceedings.
The employer will normally invite the employee to a disciplinary meeting to discuss the issue. After the meeting, the employer will usually provide a written decision. The employee will normally be given the right to appeal against the employer's decision.
Laboro Lawyers can advise on disciplinary allegations against employees and manage the disciplinary process.
What is an appeal?
If an employee has received a decision relating to a grievance raised, or disciplinary penalty received, the employee can normally appeal the decision. This will usually be in writing and provide grounds of appeal.
The employer will normally invite the employee to an appeal meeting to go through the grounds of appeal. After the meeting, the employer will usually provide a written decision.
Laboro Lawyers can advise and prepare appeals.
What is unfair dismissal?
An unfair dismissal will normally only apply where an employee has been employed by an employer for at least 2 years. Although, there are some exceptions when a dismissal may be automatically unfair and an employee will not need 2 years' continuous service.
An employee will be usually unfairly dismissed if an employer does not have a fair reason for dismissal (eg conduct, capability, or redundancy) and/or does not follow a fair process.
If the employee has been unfairly dismissed they will be able to bring an employment tribunal claim against the employer.
Laboro Lawyers can advise on whether an employee has been unfairly dismissed and manage a disciplinary process.
What is constructive dismissal?
A constructive dismissal is where an employee resigns due to the conduct of an employer.
The employer's conduct must be a breach of an express term (eg failure to pay wages) or an implied term (eg trust and confidence between employee and employer) of the contract of employment.
The employee cannot wait too long before accepting the breach of contract before resigning, otherwise, the employee may be seen as having accepted the breach.
If the employee has been constructively dismissed they will be able to bring an employment tribunal claims against the employer.
Laboro Lawyers can advise on whether an employee has been constructively dismissed.
What is wrongful dismissal?
A wrongful dismissal is where an employer dismisses an employee in breach of their terms and conditions of employment.
If an employer dismisses an employee but either fails to provide for contractual notice or fails to follow a contractual disciplinary procedure, this will be a wrongful dismissal.
If the employee has been wrongfully dismissed they will be able to bring an employment tribunal claim or court claim against the employer.
Laboro Lawyers can advise on whether an employee has been wrongfully dismissed.
What is a protected conversation?
A protected conversation is a confidential off-the-record discussion between an employer and an employee about the termination of the employee's employment.
Provided certain formalities have been followed, an employee will not be able to refer to the discussion in subsequent proceedings for unfair dismissal.
Laboro Lawyers can advise and assist you with protected conversations.
What is a settlement agreement?
A settlement agreement is a legally binding agreement between an employer and an employee that prevents the employee from bringing statutory employment claims against the employer.
An employee must take legal advice from a relevant independent adviser on the terms and affect of the settlement agreement for it to be enforceable.
Laboro Lawyers can advise and negotiate on settlement agreements.
What is Acas early conciliation?
Acas early conciliation is a free service designed to encourage settlement of a potential employment tribunal claim.
An employee (or ex-employee) can commence early conciliation to try and settle a dispute. This will last for 6 weeks. If a settlement cannot be reached, Acas will issue the employee with a certificate. This certificate has a unique reference number that will need to be included in an employment tribunal claim form.
Laboro Lawyers can advise on Acas early conciliation and manage the process on behalf of employees and employers.
What is redundancy?
Redundancy is where there is: (a) the actual or intended closure of the whole business (b) the actual or intended closure of the business at a particular workplace (c) a reduction in the need for employees to carry out work of a particular kind.
An employer will need to follow a fair process otherwise any resultant dismissal could be unfair.
The minimum requirements of a fair process will normally include placing an employee at risk of redundancy, consulting with the employee and offering suitable alternative employment (if this is available).
Laboro Lawyers can advise on all aspects of the redundancy process and advise on whether a dismissal is unfair.
What is whistleblowing?
Whistleblowing is the disclosure of information that relates to actual or suspected wrongdoing or dangers at work.
A disclosure of information by a whistleblower has to be in the public interest and normally relates to something that my not be personal to the individual but will impact the employer, a third party or work colleagues.
Whistleblowing concerns usually relate to the conduct of managers or colleagues, but they may sometimes relate to the actions of a third party, such as a customer, supplier or service provider.
Laboro Lawyers can advise on whether an employee has blown the whistle.
What is TUPE?
TUPE means the Transfer of Undertakings (Protection of Employment) Regulations 2006.
The purpose of TUPE is to protect the rights of all employees when the whole or part of the business of an employer is taken over by another employer. If TUPE does apply, the incoming employer (referred to under TUPE as the transferee) takes on all the rights and liabilities associated with the employees who were employed by the out-going employer (referred to under TUPE as the transferor) immediately before the transfer took place.
Laboro Lawyers can advise on all aspects of TUPE and advise on whether TUPE apples and whether a and fair process has been followed.
What is unlawful discrimination?
Unlawful discrimination relates to a what is called a protected characteristic: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex and sexual orientation.
Unlawful discrimination can be direct, indirect, discrimination arising from disability and a failure to make reasonable adjustments.
Whether an act or omission amounts to unlawful discrimination can be complicated and legal advice should always be sought.
Laboro Lawyers can advise on whether conduct amounts to unlawful discrimination.
What is harassment?
Harassment is where an employee is subjected to detrimental treatment by an employer or work colleague, which: violates the employee’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.
An employee will only be able to bring an employment tribunal claim, if the harassment relates the employee's protected characteristic.
Any form of discrimination is complicated and legal advice should always be sought.
Laboro Lawyers can advise on whether conduct amounts to harassment.
What is victimisation?
Victimisation is where an employee is subjected to a detriment because they have done something within the Equality Act 2010 (Act).
An employee will suffer victimisation by an employer or work colleague, if the detrimental treatment is because the employee has: (a) brought claim under the Act (b) given evidence or information in connection with a claim under the Act (c) did any other thing for the purposes of or in connection with the Act (d) alleged that the employer or work colleague has committed an act that contravenes the Act.
Laboro Lawyers can advise on whether conduct amounts to victimisation.
What is a subject access request?
A subject access request is a request for information by an employee normally to an employer for information relating to the employee (ie they are the subject of the data request).
The employer normally has 1 month to provide the information requested by the employee. The employer can request information from the employee to assist in the search for information.
Laboro Lawyers can advise and prepare subject access requests.
What are restrictive covenants?
Restrictive covenants are normally set out in an employment contract or separate agreement, which prevent employees from doing certain things after their employment has ended with an employer.
The restrictions often prevent an employee from: (a) working for a competing business (b) soliciting and dealing with an employer's clients and (c) poaching an employer's staff, for a set period.
Restrictive covenants can be difficult to understand and legal advice should always be sought.
Laboro Lawyers can advise on restrictive covenants and whether they are enforceable.
What is IR35?
The IR35 legislation looks to identify deemed employees and ensure they are taxed correctly.
The rules make sure that workers, who would have been an employee if they were providing their services directly to the client, pay broadly the same income tax and National Insurance contributions (NICs) as employees.
If the IR35 rules apply, tax and NICs must be deducted from fees and paid to HMRC.
Laboro Lawyers can advise on whether IR35 applies based on the circumstances.
Notice
If an employee has been employed for less than 2 years, an employer may decide not to follow some of the procedures above.
The information provided above is for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.
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