Employment Law FAQs

We have answered our most frequently asked questions below. If you don’t find the information you need please feel free to get in touch and one of our Employment Law experts will get back to you as soon as we can.

  • If you are eligible to bring a claim for unfair dismissal you are entitled to written reasons for dismissal and they must be provided by your employer within 14 days.

    Whatever your length of service, if you are pregnant or you are on statutory maternity or adoption leave you are entitled to written reasons without having to request it.

  • “Some other substantial reason” is one of the potentially fair reasons for dismissal and this could include a personality clash. An employer would likely need to prove that it was causing substantial disruption to the business and that they had taken reasonable steps to solve the problem such as redeployment, changing working patterns and mediation.

  • Yes, although as part of considering the alternatives to redundancy one of the initial steps an employer should normally consider is ending or reducing the use of agency staff.

  • This is not a problem in itself. Depending on when the employer’s breach occurred you need to think about the effect of delay and the danger that you will have affirmed the breach.

  • You can. If the reasons are valid an employee who is pregnant or on maternity leave can still be fairly dismissed. However, it is when the dismissal is connected to the pregnancy or maternity leave that the dismissal will be automatically unfair.

    To give an example, when deciding who to select for redundancy an employer may look at performance figures. If an employer fails to take account of time off for maternity leave, then the employee selected may have a good claim for unfair dismissal and also discrimination.

    This area provides for a rare example of positive discrimination in the laws of England & Wales as when someone is on maternity leave they are entitled to be offered a “suitable alternative vacancy” where one exists.

    Suitable alternative vacancy

    If redundancy arises whilst you are on maternity leave and it is not practicable for your employer to continue to employ you under your existing contract, you are entitled to be offered a suitable alternative vacancy where one is available. The vacancy ought to start immediately after your existing contract ends and can be with an associated employer.

    The alternative vacancy must:

    • Be both suitable and appropriate in the circumstances; and
    • Not be substantially less favourable to the employee with regard to the capacity, place and terms and conditions of employment than if the employee had continued in their old job.

    It is interesting to note that this lawfully gives employees on maternity leave priority over other employees who are also at risk of redundancy. This is a rare example of positive discrimination in the law of England & Wales. Failure by the employer to comply with these requirements would automatically give rise to a claim for unfair dismissal.

    If your employer is not acting fairly and wishes to avoid an Employment Tribunal claim, you may be in a strong negotiation position and should seek expert advice and support from a solicitor.

  • Not if you are leaving on good terms. As a practical point, a pleasant resignation letter may result in a more positive reference.  

    If you are leaving as part of a constructive dismissal claim, the alleged breach(es) should be included in the letter.

  • The calculation takes into account your age, length of service and weekly pay (currently capped at £475). It is:

    • 1.5 weeks’ pay for each complete year you are over 41 years old;
    • 1 week’s pay for each complete year you are over 22 but under the 41 years old;
    • 0.5 weeks’ pay for each complete year you are 22 years old and under.
  • Contact us on 0113 201 4900 or email us at employment.law@emsleys.co.uk to book an initial free consultation

  • Not easy but certainly possible. Capability is one of the potentially fair reasons for dismissal and this includes capability assessed by reference to health. There may also be an overlap with two other fair reasons including conduct and “some other substantial reason”.

    Some of the factors that your employer will need to consider and support with evidence are as follows: (a) nature of the illness; (b) prospects of returning to work and likelihood of illness reoccurring; (c) need to have someone doing the work; (d) effect on the rest of the workforce; (e) extent to which you were aware of the position; and (f) your length of service.

  • Not easy but not impossible. There are no fixed rules and an employer has wide discretion. An employer will need to show that it genuinely applied its mind and that the choice of pool was in the band of reasonable responses.

  • Agreeing a document such as a new Employment Contract or Settlement Agreement might take as little as an hour to as much as a few weeks depending on the issues.

    A claim which ends in the Employment Tribunal might take anywhere from 6 months to 12 months+ depending on the complexity of the case.

  • The value of an unfair dismissal claim  is made up of the basic award (capped at £14,250) and the compensatory award (capped at £78,335). The value of your claim depends on your individual circumstances.

  • Yes. We will start by discussing the reason for the term, whether it is enforceable and your bargaining-power.

  • You may have been unfairly dismissed. Whatever the reason for dismissal, even in cases of gross misconduct, an employer should still hold a Disciplinary Hearing and give you the right of appeal. Please contact us to discuss your case.

  • To bring a claim for unfair dismissal you generally need 2 years’ continuous service. If you have been unfairly dismissed, either because the decision is procedurally and/or substantively unfair, we can help.

    In the absence of legal expenses insurance or Trade Union funding we can review your case and see if you are eligible for our ‘no win, no fee’ arrangement.

  • Harassment at work is unacceptable. You should start by checking whether your employer has an Anti-Harassment and Bullying Policy at work. If following the procedure set out in the policy does not resolve the problem or if you would like to discuss your options please contact us.

  • If you are not comfortable with the original offer we may be able to re-negotiate on a ‘no increase, no fee’ basis. Please contact us to discuss your case.

  • Yes. Within 2 months of starting an employee has a legal right to a written statement of particulars of employment. Such a statement forms the basis of an Employment Contract, which can deal with important issues ranging from; probation periods, pensions, start dates, sick leave, hours of work, disciplinary & grievances, place of work, termination and notices, salaries and benefits, post-termination restrictions and holidays.

  • We will begin by looking at the non-compete clause itself and your individual circumstances. As a starting point we will consider whether the clause is reasonable taking into account: (a) whether there are any legitimate business interests to protect; (b) the age of the restrictions; (c) the length of the restrictions; and (d) the geographical extent of the restrictions. The bargaining power of the parties is also an important factor.

  • Consult your employer’s whistle-blowing policy as a starting point. If you are not sure or need some help contact us.

  • Your Employment Contract does not have to set out your rights to maternity/paternity leave. Your employer’s policies on maternity, paternity and adoption would usually be found in a non-contractual Staff Handbook. Of course, just because your rights are not set out in an Employment Contract or Staff Handbook does not mean the rights do not exist.

  • It is often sensible to appeal your employer’s decision. If your employer is reasonable they should give you a fair hearing and there is always the possibility that they decide to re-instate/re-engage you or give you a lesser sanction.

    Even where you employer is unreasonable and you feel the process is a sham, it may still be sensible to appeal because an Employment Tribunal may reduce any compensation awarded if you unreasonably fail to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures which invites you to appeal.

  • Given how serious your employer’s conduct must be to qualify for a claim for constructive dismissal it would be unusual to work your notice. If you do work your notice then the constructive dismissal occurs when the notice expires.

  • It is a clean break. Employment law is a minefield and when an employment relationship comes to an end it can descend into a dispute leading to an Employment Tribunal. A Settlement Agreement provides the employee with a sum of money to help them to move on. It gives the employer security and the knowledge that it is not going to be dragged into months of Tribunal proceedings where it has nothing to gain.

  • Where an employer plans to make 20+ employees redundant within a period of 90 days or less they must consult with representatives of the employees and notify the Department for Business, Innovation and Skills (BIS). Where less than 100 redundancies are proposed consultation must begin within 30 days before the first dismissal. For 100+ employees it is 45 days.

  • A claim must usually be brought within 3 months of the “effective date of termination”. This is varied by the ACAS Early Conciliation process which stops the clock. The limitation period is relatively short and there is much to do so you should not delay.

  • The 3 key elements are set out above (see ‘what is a settlement agreement?’) but it is usual for an employer to seek some standard additions. These include: the return of all company property; keeping confidential information confidential; keeping the existence and terms of the agreement private; and not making any derogatory statements about the business. Such clauses are standard and they are generally uncontroversial as they fit with the idea that the Settlement Agreement is a clean break.

    Sometimes more is required, for example where an employer requires post-termination restrictions preventing completion, solicitation of customers and poaching of employees, and it is important for employers to take their own legal advice when offering a Settlement Agreement.

  • This would likely be the same for an unfair dismissal claim.

  • Where you reject an offer of suitable alternative employment you may forfeit your right to a redundancy payment. The immediate question is whether the employment is suitable. Where it is offered and accepted it should be subject to a trial period.

  • A settlement agreement is made up of 3 key elements as follows: (1) employment ends; (2) with the employer paying a sum of money; and (3) the employee settling their Employment Tribunal/Court claims. To be a valid settlement agreement an employee must take independent legal advice.

  • This refers to mass redundancies of 20+ employees within a period of 90 days or less.

  • This is where your employer commits a repudiatory breach of contract, being a breach so serious that it allows you to terminate the contract by resigning. It may be one major breach or a series or more minor breaches culminating in the “last straw”.

  • For businesses we offer a tailored service where you can choose between:

    (a) An “On Demand” option where you pay a competitive fixed fee for a fixed service; or

    (b) A HR Advice Service with optional insurance where you pay by a fixed monthly instalment.

    For private clients:

    If you are offered a Settlement Agreement and you are comfortable with the settlement package, you have nothing to pay as your employer pays our costs. If you are not comfortable with the original offer we can re-negotiate on a ‘no increase, no fee’ basis.

    If there are terms in your Settlement Agreement or new Employment Contract which you are not happy with, we can act for you on a fixed fee basis.

    If you are bringing a claim in the Employment Tribunal, in the absence of legal expenses insurance or Trade Union funding we can review your case and see if you are eligible for our ‘no win, no fee’ arrangement. Otherwise fees are agreed up-front at our initial meeting, undertaken free of charge

  • 30 weeks’ pay capped at £14,250.

  • This is normally two years.

    However no qualifying period is required for ‘automatic unfair dismissals’ where the dismissal is due, for example, to: family reasons (e.g. pregnancy, childbirth, statutory maternity/paternity/adoption); health and safety; Sunday working; Working Time Regulations; jury duty and more.

  • The time limit for a statutory redundancy payment is 6 months starting with the relevant date. However the time limit for an unfair dismissal claim is 3 months so if the claim is a combination of a unfair dismissal and redundancy payment complaint the 3 month deadline is the important one.

  • There are five potentially fair reasons for dismissal including: capability or qualifications; conduct; redundancy; breach of a statutory duty or restriction; and "some other substantial reason".

    A dismissal must be for one of these five reasons and it must be procedurally and substantively fair. If not, it will be an unfair dismissal.

  • Basically a redundancy situation arises when an employee is dismissed and the reason is wholly or mainly attributable to a business closure, workplace closure or reduced requirement for employees.

  • A settlement agreement can be offered by an employer or an employee. Neither side has to offer. Neither side has to accept. It is when it is beneficial to both that a deal may be done.

    Employers like them because if they have done something wrong, are planning something wrong or if they don’t know if it is right or wrong (because employment law and employee relations are complex), it can get them out of a tricky situation. Even where an employer has done nothing wrong, a low commercially sensible settlement may be preferable to the management time and legal costs lost to an Employment Tribunal claim.

  • Those who are not employees and those employees who do not have 2 years’ continuous service (although there are exceptions) cannot claim unfair dismissal. There are also certain special classes, such as police officers and members of the armed forces, who may not be eligible to claim.

  • An employer should usually consider: (a) the type of work which is ceasing or diminishing; (b) the extent to which employees are doing similar work; (c) the extent to which employees’ jobs are interchangeable. An employer mush genuinely apply its mind to the composition of the pool.

  • You will be assigned one of our employment solicitors who will assist you throughout.

  • Whether you are an employer or employee, employment law is complex. A solicitor can help guide you through the process. If you are feeling the stress and anxiety of dealing with an employment problem, expert legal advice can help.

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