Practice of Employment Law
Appeals
(1) Reconsideration of an ET decision • An application for reconsideration can be made under rr70-73 Sch 1 ET(CRP)R 2013. • Applications have to be made at the hearing or within 14 days of the written judgment or written reasons being sent out. • The application should explain why it is in the interests of justice for it to be granted. • The application for reconsideration will be considered by the Employment Judge who heard the original case. (2) Appeals to the Employment Appeal Tribunal (EAT) • Either side may appeal from an ET on a point of law only. • Appeals must be made within 42 days of the full reason for the ET's decision being given. • The application must set out the grounds of law that is the basis of the appeal. • The appeal will be considered by a judge who is entirely independent of the original ET.
What policies n should the company have in place?
Common policies include ones dealing with grievance and disciplinary matters, equal opportunities, health and safety, internet and email use, whistle-blowing, family-friendly rights and sickness absence.
Case management
• r50 Sch 1 gives the ET the power to prevent or restrict public disclosure of proceedings; • striking out - the ET has some limited ability to strike out claims that have little prospect of success; • deposit - the ET can require a deposit of up to £1,000 if a claim is pursued that appears to be very weak, but not weak enough to strike out; • witness order - a witness order can be sought, asking the ET to order a reluctant witness to attend a hearing and give evidence; • requests for further information - if one party will not co-operate with providing further information, the ET can be asked to instruct that information is released; • a preliminary hearing (PH) may be ordered, or set down at the request of the parties, to determine interim matters which arise, including the procedure for exchange of documents and witness statements and the preparation of the trial bundle for the full hearing; • a PH will normally be conducted by the Employment Judge alone, and may determine issues such as whether a claim is in time, as well as whether to order a strike out or deposit.
Express terms
(1) Probationary period clauses - a trial period at the start of an employment relationship during which the employee is assessed by the employer and, following which time, he is notified as to whether his appointment will be made permanent. (2) Payment in lieu of notice (PILON) - a clause stating that the employer has the right to pay an employee a lump sum rather than require him to work out his statutory or contractual notice period. If there is no PILON clause in the contract, then an employer who pays an employee a lump sum salary payment instead of requiring him to work his period of notice will technically be in breach of contract but the employee will usually have suffered no loss. (3) Confidentiality - employees are subject to a general duty of fidelity and confidentiality, which will require them to keep the affairs of their employer secret, both during employment and after termination. However, it is not advisable for an employer to rely solely on these implied terms as it may be difficult to prove what actually is confidential. It is therefore beneficial for an employer to write a confidentiality clause specifying what is confidential to the point of being a trade secret and that its disclosure is forbidden. An express clause cannot, however, make information confidential if it would not otherwise be so. (4) Garden leave - a clause allowing the employer to require the employee to stay at home and be available for work. Any contractual terms, such as confidentiality, also remain in force. The employee is entitled to full pay and other contractual benefits during this period. (5) Gross misconduct - misconduct that is so serious that it will justify summary dismissal. Summary dismissal means dismissal without notice, so that where the employee is guilty of gross misconduct, the employer need not pay notice pay. What amounts to gross misconduct will vary depending on the nature of the employer's business. Note that, even where there is gross misconduct, the employer must still act reasonably and in accordance with proper procedure.
Flexible working
A qualifying employee is entitled to request flexible working: s 80F ERA 1996. A qualifying employee is a person who has worked for their employer for at least 26 weeks before making the request. Keith has been employed for 8 months, so he qualifies to make a request for flexible working. The request must be made in writing, specifying: 1) that it is an application for flexible working; 2) the change applied for and the date on which it is proposed the change should become effective; and 3) what impact, if any, Keith thinks making the change applied for would have on the employer, and how this can be dealt with. Only one such request can be made every 12 months. Upon receipt of the request, the employer, under s80G ERA 1996, is required to deal with the application in a reasonable manner and notify the employee of the decision within 3 months from the date of the application. An employer must have a statutory reason for refusing the request: s80G ERA 1996. From the facts, Jennifer rejected the request without proper consideration. An application can be made to the Employment Tribunal and if it is held to be well founded the Tribunal may order that the application be reconsidered and/or award compensation up to eight weeks pay. A claim in the Employment Tribunal must be brought within three months (less one day) of the rejection of the request for flexible working or that a decision to reject was based on incorrect facts. The ET can issue a declaration, recomment re-consideration of the decision, and/or award compensation of up to 8 weeks' gross pay (508 per week).
Use and implications of settlement agreements
A settlement agreement can provide certainty for both parties at the end of an employment relationship. It is important to remember that neither party can be forced to enter into such an agreement. In signing the agreement and accepting the settlement terms, the employee's right to bring a claim against their employer in a court or ET is specifically excluded. This means that employees will only be able to make claims against their employer in very specific circumstances, such as: • if the employer breaches the terms of the agreement; • personal injury claims, unless they are specifically addressed in the agreement and the employer is already aware of the injury when the agreement is signed; • claims in respect of accrued pension rights. Some rights, such as consultation rights, cannot be excluded by settlement agreements.
Common terms in settlement agreements
A settlement agreement will be a fairly complex legal document. It will set out all of the terms agreed in the negotiation process and will include: • details of the parties; • the amount to be paid to the employee; • details of the claims that the employee agrees not to take against the employer; • details of the employee's legal adviser and their signature. Settlement agreements also often contain: a reiteration of any restrictive covenants included in the employment contract; • new restrictive covenants (because the original contract may not contain adequate covenants or circumstances may have changed since the originally agreed contract); • a confidentiality clause; • provision for an agreed reference; • a non-derogatory statements clause Other key terms and issues are: • settlement sum - this is the amount to be paid to settle the dispute. it is also important to state when it is payable - usually within 14 days after signing the agreement; • "full and final settlement" clause - this states that the amount paid covers all current and potential claims • reference - it could be agreed that the employer will provide a reference as part of the settlement (the words of the reference should be agreed as part of the settlement to avoid further dispute); • tax and indemnities - advice should be taken on the tax implications of the settlement sum; • clawback - an agreement that the employee will repay the settlement sum if he brings a future claim against the employer; • pension benefits - it is important to state whether the settlement also covers all pension benefits; • personal injury claims - the time to bring a personal injury claim is more generous than that for bringing most employment claims, so this must be addressed in the settlement; • restrictive covenants - any restrictions placed as a result of the settlement, or any existing covenants that are to be enforced by the settlement; • confidentiality - the employer might want to reinforce existing confidentiality clauses, or to make the terms of the settlement confidential; • costs and expenses - whether the costs incurred by the employee in reaching the settlement are to be reimbursed by the employer.
Wrongful dismissal and enforceability
A wrongful dismissal occurs when an employer terminates the employee's contract of employment, and in so doing breaches the contract of employment, for example, by giving no, or inadequate, notice. In the case of wrongful dismissal an employee can seek an injunction to stop the dismissal from going ahead or taking effect. Alternatively, and much more commonly, an employee can seek damages in relation to the wrongful dismissal - damages would be equivalent to the salary that was lost due to the wrongful dismissal. If the employer wrongfully dismisses an employee, that is, the employer is in breach of contract, the employer generally cannot enforce a restrictive covenant within the contract (General Billposting Co Ltd v Atkinson.
Reasonable adjustments - discrimination
Adjustments only have to be made if it is reasonable to do so. Factors to be taken into account include: • whether taking any particular steps would be effective in preventing the substantial disadvantage; • the practicability of the step; • the financial and other costs of making the adjustment and the extent of any disruption caused; • the extent of the employer's financial or other resources; • the availability to the employer of financial or other assistance to help make an adjustment; and • the type and size of the employer.
Enforcement of discrimination legislation
All complaints of discrimination under EA 2010 in the field of employment are dealt with by ETs (s120). The normal time limit for a complaint is three months from the date of the alleged discrimination (or the last occurrence if the complaint relates to a series of acts). Complaints relating to equal pay should be made to an ET (s120) within six months of the last day of employment (s129). If a claimant is successful, the ET may award any of the following: • an order declaring the rights of the parties (s124(2)(a)). This is of limited effect, but sometimes the only appropriate remedy; • a recommendation that the respondent take a particular course of action designed to obviate or reduce the effects of the discrimination suffered by the claimant (s124(2)(c)); • compensation, including an award for injured feelings (with no upper limit) (s124(2)(b)). Awards for injury to feelings follow in bands (as adjusted for inflation and following the Presidents of the Employment Tribunal in England & Wales and Scotland joint update) (Vento v Chief Constable of West Yorkshire Police (No. 2)
Bringing and defending a claim in the Employment Tribunal
An individual who wants to bring a claim (the claimant) to the ET has first to proceed through the ACAS Early Conciliation Scheme. The individual is required to complete and submit an Early Conciliation Form. Conciliation is facilitated by an early conciliation support officer. If the claimant or respondent refuse to engage with the early conciliation process, or if conciliation is not successful, the claimant is issued with a unique early conciliation number which he puts on the claim form when he presents it to the Employment Tribunal. In order to commence a claim in the ET, the claimant must present his claim form (ET1). It is sent to an ET and contains the claimant's case. Where the claim is accepted by the tribunal, a case number will be allocated to it. The tribunal sends the ET1 and a blank response form (ET3) to the respondent. The respondent must: • use the prescribed ET3 form; • ensure it provides the required information; — submit its completed ET3 within the 28-day time limit. An application for an extension can be made by the respondent under r20 Sch1 ET(CRP)R 2013.
Enforcing a valid restrictive covenant
Assuming the employer is not in breach of contract, the court could award: • an injunction; or • damages (compensation for breach). An action for breach of a restrictive covenant will be pursued in the civil courts and not the Employment Tribunal. If the employer wrongfully dismisses an employee, that is, the employer is in breach of contract, the employer generally cannot enforce a restrictive covenant within the contract - General Billposting Co Ltd v Atkinson
Bringing and defending a claim in the courts
Claims in respect of restraint of trade, personal injury, confidential information and intellectual property rights must be heard in the courts. Cases concerning breach of contract including wrongful dismissal claims up to £25,000 can be (and mostly are) heard in the ET, but claims exceeding that value must be heard in the courts.
Incorporating policies into the contract of employment
Employers may wish to incorporate certain policies or procedures into the contract of employment in order to make them contractually binding on their employees. This can result in a problem where the employer later wishes to change the policy, since it may give rise to the need to achieve agreement from the workers to the proposed changes.
Age discrimination and Retirement - discrimination
Generally, it is not legally possible to justify direct discrimination. There is an exception in the case of age discrimination. Many cases of age discrimination involve a decision by an employer to make an employee retire. An employee can only be forced to retire if there is an "employer justified retirement age" (EJRA). To have an EJRA the employer would need to show that a compulsory retirement age has a legitimate aim, and that the retirement is a "proportionate means of achieving that aim". Examples of a legitimate aim are: -relating to health and safety; -relating to the training requirement of the job; -relating to the needs and efficiency of the business. The definition of a proportionate means of achieving that aim is: -the actions of the employer are fulfilling an aim that the employer has defined -the actions are required because there is no reasonable alternative way of achieving that aim -the benefits and importance of the legitimate aim significantly outweigh any discriminatory effect. Seldon v Clarkson Wright and Jakes. In Seldon it was held that when justifying direct age discrimination the following could be legitimate aims: retire with dignity, avoid the need to dismiss on grounds of underperformance and avoid disputes about underperformance. If an employer claims these aims, they must be able to show that the claim is legitimate.
Maternity pay
Governed by ss164-171 Social Security Contributions and Benefits Act 1992. A woman is entitled to SMP if she has been employed by her employer for at least 26 continuous weeks by the 15th week before the EWC, and her normal earnings are no less than the lower earnings limit for national insurance (£116 per week before tax for the year 2018/2019), and has given 28 days notice of her intention to claim SMP, and has provided a certificate confirming she is pregnant and stating EWC. SMP is paid for 39 weeks: • six weeks at 90 percent of salary; • 33 weeks at the lower rate of SMP (currently £145.18 per week).
Maternity pay
Governed by ss164-171 Social Security Contributions and Benefits Act 1992. A woman is entitled to SMP if she has been employed by her employer for at least 26 continuous weeks ending with the week immediately preceding the 14th week before the EWC, and her normal earnings are no less than the lower earnings limit for national insurance. SMP is paid for 39 weeks: • six weeks at 90 percent of salary; • 33 weeks at the lower rate of SMP (currently £145.18 per week)
Potentially fair reasons for dismissal
If the employee is eligible to claim unfair dismissal, the onus will be on the employer to show that there was a potentially fair reason for dismissal. The statutory reasons that are potentially fair are: • capability or qualifications. This category also covers competence; • conduct - a reason is potentially fair if it relates to the conduct of an employee. It includes, for example, fighting, dishonesty, drunkenness, lateness, abusive language, setting up in competition, failing to obey lawful orders, computer misuse, and ignoring health and safety procedure; • redundancy; • statutory illegality; • other substantial reason - for example, personality clash - Treganowan v Robert Knee & Co Ltd
Timeframes to bring a claim in the Employment Tribunal
In most circumstances a claim should be made within three months of either the dismissal or of the act complained of (s111 ERA 1996 and s123 EA 2010). The main exceptions are: • the right to a statutory redundancy payment - 6 months starting from the relevant date (s135 ERA 1996); • the right to receive equal pay for work of equal value - 6 months starting from the date when the claimant's job ended. The ET has a discretion to extend the time limit in certain circumstances. For a discrimination claim, it can hear the claim, even if it is outside the three month time limit, if it is just and equitable to do so.
Confidential information
Intellectual property may be protected by the Copyright, Designs and Patents Act 1988. During employment there is a wide duty to keep an employer's information confidential. Post-employment it will depends on whether it is a trade secret.
Sample draft maternity policy
Introduction All pregnant employees are entitled to reasonable time off to attend antenatal appointments and to maternity leave. Entitlement to statutory maternity pay depends upon the length of service and earnings of the individual employee. Please inform us as soon as possible that you are pregnant. This is important as there may be health and safety considerations. Policy This policy outlines the statutory rights and responsibilities of employees who are pregnant or have recently given birth. Maternity leave All employees are entitled to maternity leave regardless of their length of service. The maternity leave period comprises of 26 Ordinary Maternity Leave (OML) and 2 weeks of Additional Maternity Leave (AML). There is a period of compulsory maternity leave which must be taken this is 2 weeks' leave. The entitlement to maternity leave is dependent on the employee giving the following notification of her intention to take maternity leave no later than the 15th week before her expected week of confinement (EWC): - Her pregnancy; - The expected week of child birth (EWC); - The date she intends her OML to start. This cannot be earlier than the 11th week before the EWC. The commencement of maternity leave can also be triggered early in the event that the employee is absent due to a pregnancy related sickness in the four weeks before the EWC or it will commence on the day after the child's birth if the child is born before the expected maternity leave period. Employees should also specify the intended duration of maternity leave they wish to take. Maternity Pay To qualify for statutory maternity pay (SMP) an employee must: - Have been continuously employed for at least 26 weeks into the 15th week before the EWC, employees. - Have earned an average of at least the lower earrings limit for National Insurance purposes in the 8 weeks leading to the qualifying week. -Employees should ensure that you give at least 28 days notice in writing of when they wish to take their SMP. SMP cannot be paid until you have stopped working entirely (excluding KIT days). Antenatal appointments All pregnant employees are entitled to reasonable paid time off to attend antenatal appointments'. Keeping in Touch Whilst on a period of maternity leave you are entitled to up to a maximum of 10 days keeping in touch (KIT) days. KIT days can be used for training, keeping up to date with work developments; you are not obligated to undertake KIT days. If you wish to use a KIT day please contact your line manager to make appropriate arrangements. KIT days cannot be used in the period of compulsory maternity leave. Return to work following maternity leave If an employee wishes to return to work before the end of their maternity leave they must give a minimum of 8 weeks' notice in writing to their line manager. You are normally entitled to return to work in the position you held before starting maternity leave, and on the same terms of employment. However, if you have taken AML and it is not reasonably practicable for us to allow you to return into the same position, we may give you another suitable and appropriate job on terms and conditions that are not less favourable.
Health and safety policy
Purpose Employers (except those employing fewer than five employees) are under a statutory duty to prepare and keep up-to-date a written health and safety policy (s2(3) Health and Safety at Work etc. Act 1974). It is also useful to help avoid: • damage to reputation; • costs related to injured employees; • staff turnover; • claims for damages; • fines or other sanctions. Content Typically, a health and safety policy would contain three main parts: • a general statement of commitment; • a statement of the role, function, responsibility and accountability of the management of health and safety; • a statement of the practical arrangements for the effective implementation of the policy.
Sample settlement sum, confidentiality and restrictive covenants
Settlement Sum: The company will pay the employee (name) the sum of XXX payable within the next 14 days from the day of signing this agreement. Confidentiality: Both parties agree to keep all terms of this agreement confidential and not to reveal the nature or detail of this agreement to any third party whatsoever. In addition, the employee will not reveal the nature or circumstances of their dismissal or any detail related to it to a third party. Restrictive covenant: the employee will not take up a post similar to the one held at the company with any company in the xxx industry within a 15-mile radius for a period of six months. In addition, s/he will not solicit the business of the company's clients for a period of six months.
The early conciliation (EC) procedure
The early conciliation (EC) procedure applies to all claims unless an exemption applies. A prospective claimant for unfair dismissal must notify ACAS of an intention to apply to the Employment Tribunal either by phone or using an on line form or by posting a hard copy of the form to ACAS. There is no requirement that the prospective claimant gives details of the potential claim. ACAS acknowledge the notice given by the prospective claimant. An ACAS officer will attempt to contact the prospective claimant within two working days. If the prospective claimant agrees to EC then the claim is passed to a conciliator to see if an agreement can be reached between the parties. The conciliator has one calendar month from the original notification to see if terms can be agreed. A single extension is possible, if both parties agree, of up to two weeks if there is a reasonable prospect that settlement will be reached. If EC is refused then ACAS will issue a certificate enabling the prospective claimant to pursue their claim in the ET. If terms of settlement are reached then ACAS will record that on a COT3 form. If terms are not reached by the end of the EC period then the EC certificate will be issued, authorising the issue of proceedings in the Employment Tribunal.
Flexible working provisions: remedies
The employee may be able to pursue a claim in the Employment Tribunal if the request is not granted and, if successful, may be awarded compensation of up to eight weeks' gross pay
Ordinary paternity leave provisions
The father of a child, or someone who will take responsibility for caring for the child, is entitled to take up to two weeks' ordinary paternity leave (OPL) within 56 days of the birth. This must be taken in a two-week block or one one-week block. To qualify, the employee must: • have at least 26 weeks' continuous service with the employer by the end of the 15th week before the EWC; • be expecting to parent the child. An employee taking OPL must not suffer any detriment for doing so, and is entitled to return to the same job that he had prior to taking the leave. OPL is paid at the rate of £145.18 per week (or 90 percent of average weekly earnings if lower).
Restrictive covenants
There are 4 types of restrictive covenants: Non-solicitation A non-solicitation clause prevents former employees from soliciting the business of clients or customers of the former employer. Non-competition This type of covenant prohibits the employee from working for a competitor within a certain area for a certain period of time. The employer would only need to show that the particular employee's employment was such that the employee would be exposed to trade secrets or other confidential information. Non-dealing This type of restriction goes further than non-solicitation covenants. It does not just prohibit an employee from soliciting clients from their former employer but prohibits the employee from working for such clients or selling to them at all. This would apply even if it is the client or customer who approaches the former employee without any solicitation from the employee. Non-poaching A non-poaching clause prohibits former employees from seeking to employ their former colleagues. A restrictive covenant is prima facie void for public policy reasons. This is because such clauses will affect the employee's ability to obtain another job and earn money. In order to ensure that a restrictive covenant is legally enforceable an employer must show that there is a legitimate business interest to protect. Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd. Secondly, it must be reasonable in its scope, location and duration. Each case will need to be considered on its own facts. A good comparison is shown by cases such as Fitch v Dewes (geographical scope) and Fellows v Fisher (type of work). In Thomas v Farr (2007) -duration - a restriction of 12 months was held to be reasonable. If a restrictive covenant is drafted too widely and do not meet the criteria they will not be valid and are unenforceable. Any restrictive covenant must, therefore, be drafted carefully to ensure it is enforceable. If a clause is drafted too widely and is found to be in restraint, the court may be able to apply the "blue pencil test" to sever any part of the clause that is too wide. The remainder of the clause will remain enforceable.
TUPE
There are two categories of transfer covered by TUPE 2006: (a) the transfer of an economic entity which retains its identity (the "traditional" transfer; and (b) a service provision change. As to the "traditional" transfer, it is defined in reg 3(1)(a) TUPE 2006 as a transfer of an undertaking, business or part of a business situated immediately before the transfer in the United Kingdom to another person where there is a transfer of an economic entity which retains its identity. reg 3(2) defines economic entity as an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary. This standard definition has been interpreted in Spijkers v Gebroeders Benedik Abbatoir CV and Alfred Benedik en Zonen BV [1986] (the Spijkers case), which lays down the basic definition of a transfer of an undertaking. The tribunal will consider the following factors listed in the Spijkers decision: 1) the type of undertaking; 2) whether assets (tangible or intangible) are transferred; 3) whether employees are taken over; 4) whether customers are transferred; 5) the degree of similarity of activity before and after the transfer. There needs to be a stable economic entity (Cheesman v Brewer Contracts). reg 4 provides that a transfer does not terminate the contracts of employment of the employees working in the grouping which is to be transferred. Instead, their contracts are treated as if they had been entered into by the new employer. reg 4(2) transfers the transferor's rights, powers, duties and liabilities under or in connection with the contract. reg 4(4) TUPE 2006 (as amended) provides that subject to regulation 9, any purported variation of a contract of employment that is, or will be, transferred by paragraph (1), is void if the sole or principal reason for the variation is the transfer. reg 4(5) provides that reg 4(4) does not prevent variations of contract after transfer, if either: (a) the sole or principal reason for the variation is an economic, technical, or organisational reason entailing changes in the workforce, provided that the employer and employee agree that variation; or (b) the terms of that contract permit the employer to make such a variation. An ETO reason is not defined in the regulations but it is likely to include a reason relating to the profitability (an "economic" reason), equipment or processes (a "technical" reason) or management structure (an "organisational" reason) of the transferee's business. The term "entailing changes in the workforce" includes a change in the place where employees are employed by the employer to work. This prevents genuine place of work redundancies from being automatically unfair.
Implied terms
There are two main types of implied terms. First, terms are implied to ensure business efficacy (e.g. O'Brien v Associated Fire Alarms Ltd [1968]). Second, terms can be implied as a matter of law. These relate to the duties of the employer and those of the employee. The duties of the employer include the duty: • to provide work (Collier v Sunday Referee Publishing Co Ltd [1940]); • to pay wages (Rigby v Ferodo Ltd [1987]). By statute, wages must comply with the National Minimum Wage Act 1998; • to pay holiday pay for at least the statutory minimum of 5.6 weeks per annum; • of safety and care (Wilsons and Clyde Coal Ltd v English [1938]); • of mutual trust and confidence. The employer is under an obligation not to conduct himself in a manner calculated or likely to destroy or seriously damage the employment relationship (Courtaulds Northern Textiles Ltd v Andrew [1979]).
Automatically unfair reasons for dismissal
These include, amongst others: • trade union membership; • pregnancy or other family friendly rights; • reasons relating to the Working Time Regulations 1998; • reasons relating to the national minimum wage; • making a protected disclosure (whistleblowing). For most dismissals for automatically unfair reasons (including pregnancy and whistleblowing), the right not to be unfairly dismissed is effective from the beginning of employment, that is, the usual two years' continuous employment is not required.
Draft restrictive covenants
This is an Agreement between [Name of Employee] hereafter referred to as "You" and [Name of Company] hereafter referred to as the "Company". The Agreement is effective from _____ ("Effective Date"). Under the terms of this contract of employment you agree to the following restrictions on termination of your employment, however so arising. Non-solicitation During your employment and for a period of six months following the termination of your employment, you shall not solicit, induce or undertake any act likely or intended to induce any customer or client of the company for whom you have provided professional services during the course of the last 12 months of your employment to transfer their business to any third party associated with you, nor will you otherwise deal with or endeavour to take away such customers or clients. This includes but is not limited to informing the company's clients or customers that you have taken up any new employment or that you are setting up a business on your own account. Non-competition During your employment and for a period of six months following the termination of your employment you shall not without the prior express written approval of the company in any capacity, carry out for payment or reward within the United Kingdom the role or function of a INSERT ROLE in the field of INSERT FIELD. Non-dealing During your employment and for a period of six months following the termination of your employment you shall not without the prior express written approval of the company, whether by yourself or on behalf of another person or company or employer directly or indirectly have any professional or business dealings with any person or organisation which, during the course of the last 12 months of your employment was a customer of the company or engaged in contractual negotiations with the company. This clause shall apply to dealings instigated by the third party as it applies to dealings instigated by you. Non-poaching During your employment and for a period of six months following the termination of your employment, you shall not solicit or induce persons employed or engaged by the company with whom you worked during the 12 months prior to the termination of your employment to terminate their employment or engagement By your signature below you acknowledge that you have read and understand and agree to comply with all of the terms of the Agreement. Date: Employee Signature: Date: Name of Company:
SOSR - personalities clash - Treganowan v Robert Knee & Co Ltd case
Treganowan v Robert Knee & Co Ltd [1975] a clash of personalities caused by Miss Treganowan continuing to discuss "her way of life" in terms of her relationships led to the tribunal concluding that the only reasonable course of action was to dismiss her, when, in the tribunal's opinion, the atmosphere in the office "... had become so tense that it was unbearable and was seriously affecting the [employer's] business...".
TUPE: Dismissals
Under reg 4(9), the employee may treat the contract as being terminated by the employer on any substantial change of working conditions to his material detriment.# Under reg 7(1) TUPE 2006, where, either before or after the transfer, an employee of the transferor or transferee is dismissed, the employee is automatically unfairly dismissed if the sole or principal reason for the dismissal is the transfer unless there is an ETO reason entailing changes in the workforce. In order to bring a claim for unfair dismissal, the employee must be eligible to bring such a claim, for example, continuously employed for two years or more. If the reason for dismissal is an ETO reason entailing changes in the workforce, the employer must still act reasonably in deciding to dismiss.
Explain the importance of having Disciplinary, dismissal and grievance procedures
Under s3 Employment Rights Act 1996 the employer must provide their employees with details of any workplace disciplinary or grievance procedures and disciplinary rules. Purpose • Provide a clear framework to deal with problems; • ensure that all employees are treated consistently; • ensure that issues are dealt with fairly and reasonably; • ensure compliance with current legislation In addition, adoption of and adherence to procedures will reduce the risk of successful claims against the employer, for example, unfair dismissal. Content The ACAS Code of Practice on Disciplinary and Grievance Procedures sets out the principles which an employer should adopt in dealing with disciplinary and grievance matters. In a claim for unfair dismissal or discrimination, the ET is bound to take the Code into account in deciding whether an employer has acted reasonably. Further, the ET has the power to increase or decrease compensation for a successful claim by up to 25 per cent when the Code of Practice is not followed without good reason. Any policy in this area must therefore comply with the minimum requirements set out in the Code of Practice and should include the following: • a statement of the purpose and key principles of the procedure; • the stages in the disciplinary or grievance process - informal discussion, written warning, final written warning and dismissal including suggested timeframes for each stage; • the employee's rights in relation to the procedure - for example, the right to be accompanied to a disciplinary meeting; • the procedure for matters which amount to gross misconduct and a definition of those matters. The gross misconduct is a conduct that is so serious that the employee could be dismissed for a first offence and which could also lead to a dismissal without notice; and • the appeals process The disciplinary policy is, in effect, an advanced warning to employees of activity which is considered unacceptable and the potential disciplinary sanction that could be applied. Any disciplinary action should take into account all the circumstances, such as the employee's length of service, work record, nature of job, their level of seniority and any mitigating factors. Employees benefit too, as they can clearly see what is expected of them and how they can raise matters with their employer. The disciplinary policy is particularly relevant to employees who have been continuously employed for two years, as these employees have the statutory right not to be unfairly dismissed. Accordingly, dismissal of an employee who has been employed continuously must be substantively and procedurally fair. The benefit of a grievance policy is to give employees a way to raise issues with the management about their issues at work. If the employee did not want to raise a formal grievance, the grievance policy is there to tell them who they should be raising the grievance with and the process that would need to be followed by the company in dealing with it.
Garden leave and restrictive covenants
Where an employee is placed on garden leave during the notice period a court may be less likely to enforce post-termination restrictive covenants, but the Court of Appeal held in Credit Suisse Asset Management Ltd v Armstrong and Others [1996] that the two clauses were separate and, provided that a restrictive covenant was valid, it should be enforced by the court at the end of employment (i.e. after the garden leave). However, the court also said that the existence of a garden leave clause might be a factor to be taken into account in determining the validity of a restrictive covenant.
Adoption leave and pay
ay Governed by the Paternity and Adoption Leave Regulations 2002 (PAL 2002). The structure of statutory adoption leave (SAL) mirrors maternity leave, in that there are 26 weeks of OAL followed by 26 weeks of AAL. SAL can be taken by just one of the parents who adopts the child, not both. To qualify for SAL the employee must: • be newly matched with a child for adoption, and have agreed with the adoption agency a date for the adoption; • notify the employer of the wish to take SAL no less than seven days after matching, unless not reasonably practicable. Statutory adoption pay is for 39 weeks and mirrors the rates paid for SMP above. Start of OAL : • on the date the child is placed with the employee; or • no more than 14 days before the expected placement date.
Discrimination arising from a disability
s15 provides that A shall discriminate against B if: • A treats B unfavourably because of something arising in consequence of B's disability; and • A cannot show that the treatment is a proportionate means of achieving a legitimate aim. 'Discrimination arising from disability' is likely to apply where the unfavourable treatment is because of the person's abilities, as affected by the disability. For 'discrimination arising from disability' there is also a 'lack of knowledge' defence.
Formalities of settlement agreements
s203(3) Employment Rights Act 1996 (ERA 1996) sets out that, in order to be legally binding and enforceable, settlement agreements must: • be in writing; • relate to particular proceedings or a particular complaint; • only be made where the employee has received advice from a relevant independent adviser, such as a solicitor. The legal adviser must have professional indemnity insurance; • identify the independent adviser; • state that the conditions regulating settlement agreements are satisfied. It is usual for the employer to pay the legal fees of the employee, but this is not compulsory. The purpose of settlement agreements is to settle disputes without resorting to litigation.
Reasonable adjustments
s39(5) imposes a duty on employers to make reasonable adjustments. s20 states that this comprises three requirements. (1) Where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in comparison with non-disabled persons, A must take reasonable steps to avoid that disadvantage. (2) Where a physical feature puts a disabled person at a substantial disadvantage in comparison with non-disabled persons, A must take reasonable steps to avoid that disadvantage. (3) Where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in comparison with non-disabled persons, A must take reasonable steps to provide that auxiliary aid
Disability
s6 A person has a disability if he has a physical or mental impairment which has a substantial and long-term effect on his ability to carry out normal day to-day activities. Substantial means more than minor or trivial. The effect of an impairment is long-term if: • it has lasted or is likely to last for at least 12 months; or • it is likely to last for the rest of that person's life. The disability must relate to normal day-to-day activities. These are assessed at the time of the discriminatory act.
Equality
s66(1) EA 2010 provides that every person's employment contract is deemed to include an equality clause. The claimant must be able to identify a comparator of the opposite sex. The comparator must be real and not hypothetical. The comparator does not have to be employed at the same time as the claimant and can be a predecessor (s64(2)). The comparator must be employed by A's employer or an associate of A's employer, and: • work at the same establishment as A; or • work at a different establishment from A, but where common terms of employment apply at both establishments (s79). EA 2010 provides that a woman is entitled to equal treatment if she can establish one of the following: • she is doing like work with a man in the same employment (s65(1) (a)); or • she is doing work rated as equivalent with that of a man following a job evaluation study (s65(1)(b)); or • that she is doing work of equal value, in terms of the demands made of her, to that of a man in the same employment (s65(1)(c)). There is a defence of material factor if the employer can show that the difference in terms is due to a material factor which is relevant and significant and does not directly or indirectly discriminate against the worker because of her sex (s69(1)). Material factor arguments have included: - red-circling - geographical location - responsibility and bonuses -market forces
