Thursday, July 30, 2009

Employment Law Questions & Answers

Is a worker an Employee or Self-Employed ?

The difference between being an employee or self-employed will affect that person's employment rights. In deciding this question the law says that the following has to be looked at:

a) Does the employer control what work is done ?

b) Does the employer control where, when and how the work is done ?

c) Does the employer provide holiday and sickness pay ?

d) Is the employer taking the financial risk ?

e) Is the employer responsible for paying Tax & National Insurance Contributions ?

If the answers to the above are yes then that person is likely to be employed, rather than self-employed, no matter what the employment contract says.

What information must an Employer give to an Employee when they start ?

The employer by law has to give an employee a "statement" of employment, within 2 months of the employee starting work.

This covers what would normally be in a Contract of Employment, however this is not a contract between the employer and the employee.

If there is a dispute and the employer has not given the employee a contract, the court may use the terms in the statement to decide the terms of employment.

If no statement has been given within 2 months, an employee can apply to an Employment Tribunal at any time after the 2 month period, (or within 3 months of termination of the employment) for the tribunal to determine what should have been in the statement.

What should be in an employment statement ?

The employer must include the following terms in an employment statement:

1. Names of the Employer & Employee.

2. Date the employment started, including any periods of continuous employment with a previous employer, where the previous employer was taken over by the new employer.

3. Pay, including the employee's scale of pay and how it is calculated.

4. When the employee will be paid (weekly, fortnightly or monthly).

5. Hours of work and terms related to the employee's hours (for example if the employee works shifts or overtime).

6. Holidays (how much, when and whether the employee will get holiday pay).

7. Sickness procedure and entitlements.

8. Pension Scheme details.

9. Notice period.

10. Job Title and description of job.

11. Where the employee is expected to work.

12. Any collective agreements which directly affect the terms and conditions of employment.

13. Details of work abroad, if it is for longer than 1 month.

14. The length of the contract, if the employee has been employed on a fixed term contract.

15. Disciplinary Rules and Complaints Procedure.

What happens if the employer decides to change the employment statement ?

The employer must tell the employee of any changes as soon as possible.

The law states that this must be within 1 month of the change.

Should an employer give an employee a written contract ?

An employer does not have to give the employee a written contract or if they do it may not necessarily cover all the details of their employment.

However, an employee is entitled to an employment statement.

What obligations/duties does the employee owe to their employer ?

These may be explained in the contract of employment, but the law also says that there are certain obligations and duties owed by an employee to their employer, even if the contract does not mention them.

These include:

1. To do what a reasonable employee would do in any situation.

2. Duty to be honest.

3. Not to disrupt business, for example, taking part in industrial action.

4. Disclose wrongdoing (does not include "spent" convictions). But, the employee must disclose wrongdoing by other employees, even if this will incriminate them.

5. Carry out and follow orders of the employer, (as long as they are legal).

6. Not to disclose the employer's confidential information.

7. Work with reasonable care and skill.

8. Look after the employer's property if using it.

9. Not to compete in business against the employer while still working for them as an employee.

10. Not to take bribes.

11. Be prepared to change when the job changes, for example, if computers or other machinery are introduced to help the employee do their job.

12. Give any inventions to employer if these are developed by the employee during their employment.

What obligations/duties does the employer owe to the employee ?

An employer owes their employee the following duties, which again can be implied by the law or may be found in the employment contract.

1. Duty to pay the employee the agreed amount if the employee arrives for work and is able to work.

2. Provide the employee with work to do, (this is limited). However, for example, if the employee is paid by commission and the employer does not give the employee any work or if not working could damage the employee's reputation, for example if you are a senior executive in a company. Then the employer may have broken their duty to the employee.

3. Observe Health & Safety Regulations.

4. Give employees correct information about rights under their contract.

5. Give employees reasonable opportunity to have their complaints looked at.

6. There is no duty to provide references to an employee. (except where the reference is required by the Financial Service Authority.) However, if a reference is provided the employer owes a duty to the employee to make sure the reference is completed with reasonable skill and care and is true, accurate and fair. The employer also owes a duty to the receiver of the reference not to make any negligent statements about the employee.

7. The employer and employee also owe each other a duty of "Mutual Trust & Confidence", basically they must show respect for each other.

Examples of breaches:

Harassing or victimising employees, particularly in front of other employees who are less senior than the victim.

Physical violence by employer or employee.

Theft by employee.

There is no duty to pay Contractual Sick Pay.

There is an obligation on an employer to pay statutory sick pay for the first 28 weeks an employee is absent due to sickness in any period of 3 years. If an employee is eligible.

They will be entitled to at least 4 weeks holiday in any one year period.

What are the employee's rights to notice before dismissal ?

This will usually be explained in the contract.
If it is not or if the employee does not have a contract the law says that:

a) An employee is entitled to a minimum of 1 weeks' notice of dismissal if they have worked continuously for 1 month, but less than 2 years.

b) After 2 years' employment a further 1 weeks' notice is required for each whole year of continuous employment.

This carries on with 1 weeks' notice for every year up to 12 years. This is the maximum under employment law, no matter how many years an employee works over 12 years this is what the law states is the maximum notice period.

It is important to remember that this is the minimum protection only, the employee's contract might allow a longer period of notice

What is Unfair Dismissal ?

Unfair Dismissal is when the following happens:

1. An employee is dismissed and they qualify for the right to bring an Unfair Dismissal claim. See Answer 13

2. The employer did not have a fair reason to dismiss the employee.

3. Or, the employer did have a fair reason, but the matter was dealt with unfairly.

Unfair dismissal is a statutory right as it is covered by an Act of Parliament.

What is Wrongful Dismissal ?

Wrongful Dismissal is where an employee has been dismissed without notice or an employee has not been given the right amount of notice, or the employment is terminated contrary to the contract. Wrongful Dismissal is based upon the actual contract between the employer and the employee and so breaches of that contract by the employer could give the employee the right to sue for Wrongful Dismissal.

There is no requirement to have been employed for at least one year in order to bring a claim.

The more senior an employee, the better their contract terms are likely to be.
Therefore a senior employee may be better off bringing a claim for Wrongful Dismissal, rather than Unfair Dismissal where maximum levels may be set on the compensation payable.

Can an employee bring a claim for both ?

However, there will be an overlap in some of the compensation. Usually the compensation under Wrongful Dismissal will cancel out the Unfair Dismissal compensation.

How does an employee qualify for the right to bring an Unfair Dismissal Claim ?

To qualify for Unfair Dismissal protection an employee must have the following:

1. The employee must be working full or part-time, the actual amount of hours worked per week is irrelevant. Self-employed workers are excluded.

2. At least 1 year's continuous employment. For exceptions see Answer 14

3. Below 65 or the normal retirement age for the job at the date of their dismissal. For exceptions to this see Answer 14

4. Not of an excluded category, eg. the armed forces, police and share fishermen.

What are the exceptions to the 1 year rule under Unfair Dismissal ?

Normally an employee has to have 1 year's continuous employment with an employer to bring a claim for Unfair Dismissal.

The exceptions to this are:

a) If the dismissal is connected to the employee's Trade Union activities, carried out at an appropriate time, (This is usually out of work hours or during work with the employer's permission. This does not include strikes or working to rule).

b) The employee is dismissed for belonging to a Trade Union.

c) The employee is dismissed for refusing to join a Trade Union.

d) Dismissal was connected with the employee's pregnancy and maternity rights.

e) Dismissal of shop workers or those who work in the betting industry who object to working on Sundays.

f) Dismissal relating to a worker asserting their rights under employment laws.

g) Dismissal of an employee observing health & safety rules.

h) Dismissal of a worker elected as a representative for collective redundancy or transfer consultation purposes.

i) Dismissal of an employee for making a protected disclosure - "whistle-blowers".

Also if an employee is dismissed just before the 1 year period, for example 1 week before, an Employment Tribunal can add on the minimum notice period that the employee is entitled to (1 week) to give the employee the necessary 1 year.

This is done because Employment Tribunals realise that some employer's try to dismiss employees just before they qualify or threaten to do so to gain an advantage in for example pay talks.

This extension will not be given if an employee is dismissed for a serious reason, for example theft.

Is there a time limit for bringing an Unfair Dismissal Claim ?

An employee must bring an Unfair Dismissal claim within 3 monthsof being dismissed.

Extensions of this time are very rare, if an employee does not bring a claim within this time the employee will lose the right to claim.

Under the Employment Act 2002 it will be a requirement to raise a grievance first with the employer, before making a claim to a tribunal.

An employee should seek legal advice as soon as they are dismissed, giving their solicitor time to investigate the case and apply for an extension to the time limit to bring a tribunal claim, if necessary.

In the meantime an employee can still go through the company procedure.

Can an employee get Public Funding to bring a claim against an employer ?

Public Funding / Community Legal Services Funding is not available for bringing a claim.

However, if an employee is on a low income or benefits the employee will qualify for a certain amount of free advice under what is called the "Legal Help Scheme", (formerly advice & assistance scheme). SeePublic Funding section.

Most solicitors provide Legal Help advice.

An employee can however get Public Funding if appealing against an Employment Tribunal decision by taking the case to the Employment Appeal Tribunal (EAT).

What are an employee's maternity rights ?

As already stated in Answer 14 an employer cannot dismiss an employee because she is pregnant, it does not matter if the employee does not have 1 year's continuous employment with the employer. The dismissal will be automatically unfair.

1. A pregnant employee is entitled to Maternity Leave without having worked for 1 year. Ordinary maternity leave is 26 weeks.

They also have a right to Additional Maternity Leave. This starts at the end of the Ordinary Maternity Leave period and lasts for 26 weeks.

2. A pregnant employee also has the right to Maternity Pay, if she has worked for 26 weeks or more.

The 26 weeks is counted from 15 weeks before the week the baby is due.

So take the week that the baby is due and count back 15 weeks.

If an employee has worked for 26 weeks at that stage the employee can claim Maternity Pay, this is paid for 39 weeks. Please see the maternity section of the Employment Factsheet for details.

3. Right to same contractual terms whilst off work (except same pay).

4. Right to paid leave for ante-natal care.

5. Right to return to work under the same contractual conditions after ordinary maternity leave and a comparable position after additional maternity leave.

6. The employee should be offered alternative work (if it is available), if the pregnancy means they cannot do the work they are normally employed to do.

What are an employee's rights under Sex and Race Discrimination law ?

An employer is not allowed to discriminate on the following grounds:

1. Sex of employee or prospective employee.

2. Marital status of employee or prospective employee.

3. If an employee intends to undergo, is undergoing or has undergone gender reassignment.

4. Race, (this means colour, race, nationality or ethnic origins) of employee or prospective employee.

5. Also an employer cannot victimise an employee for bringing a complaint for discrimination or giving evidence in a complaint brought by another employee.

However, following the introduction of the Human Rights Act 1998 an Employment Tribunal has decided that the Sexual Discrimination 1975 does include sexual orientation, Ministry of Defence v. Macdonald. However, the Human Rights Act 1998 does not deal with compensation for discrimination.


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