Raworths LLP
Employment FAQs Employment FAQs

Employment FAQs

Business

We act for businesses as well as the people who create, own and invest in them, building long term relationships with our clients to understand the unique challenges and opportunities they face. Our depth of experience and knowledge is focussed on providing practical advice designed to meet all our clients’ business needs.

Individuals & Families

We understand how important your case is, our experienced teams are on hand to provide practical and effective legal advice. With one of the largest teams of lawyers in North Yorkshire we work for wealthy individuals and their families, trusts and family businesses - your needs are at the heart of what we do.

Property

Our Commercial, Residential and Agricultural Property teams have the expertise to help you deal with the opportunities and challenges of the freehold and leasehold real estate market. We have substantial depth of experience of the property world and its demands which gives us the crucial ability to help you achieve your aims.

Resolving Disputes

Disputes are an unavoidable fact of life, but when they happen it is essential to find a quick, effective and practical solution to the situation. Whether your issues are commercial or business related, family or personal, we have the depth of experience, imagination and expertise to help you solve your problems.

Is it necessary to give my employees written contracts of employment?

Yes it is. If nothing is put in writing, a verbal contract will exist and the terms will be determined by what was agreed, by custom and practice or by implication.  Such terms may favour the employee.  The importance of ensuring that employees sign up-to-date and well written contracts of employment is paramount.  Written contracts, properly constructed, provide certainty and prevent misunderstandings about the terms which may lead to subsequent disputes.  There is a legal obligation to provide employees with a written statement of particulars of employment within two months of the start of their employment.  An employee can recover compensation from an employment tribunal if their employer fails to provide a written statement or provides one which is incomplete or inaccurate.

Do I have to have a separate staff handbook?

It is extremely important to have policies and procedures separate from the contract of employment so that they do not have contractual effect. This is so that if the employer makes any slight deviation from them (due to exceptional or unusual circumstances), it will not result in a breach of contract claim.  Policies and procedures can be documents but often employers find the best way to keep them together is in a staff handbook.  The benefits of having policies and procedures in place are far-reaching.  Not only are they a good tool for establishing and communicating rules to employees, but they can also prevent disputes occurring or, alternatively, form a crucial piece of evidence should a claim be brought against you.

Can I dismiss an employee who has worked for me for less than two years?

Usually, employees do not accrue protection from unfair dismissal until they have two years’ continuous service. However, there are certain categories of dismissal which can be automatically unfair from day one, such as a pregnancy-related dismissal and in these situations an unfair dismissal claim can be brought no matter what length of service the employee has accrued.  Employees with less than two years’ service can also bring breach of contract claims if insufficient notice is given to them.  Discrimination claims can also be brought, no matter what the length of service.  Aside from these risks, it is generally safest to dismiss an unsatisfactory employee before they acquire two years’ service.  We strongly recommend however, that legal advice is taken before effecting any dismissal.

How do I dismiss an employee for poor performance?

Performance dismissals are notoriously difficult. Care must be exercised in ensuring that a proper procedure is followed.  Initially, an informal process should be followed when targets are set and the employee is given the chance to improve.  If the employee fails to improve, then formal warnings must be issued and a further opportunity given to the employee to improve.  If appropriate, guidance and training should be given to the employee to assist improvement.  If the employee continuously fails to improve and the formal warning procedure has been exhausted, then you can proceed to dismissal, ensuring that a formal procedure is followed and the right of appeal is provided.

How do I make someone redundant?

In order to avoid an unfair dismissal liability, there must be a genuine redundancy situation and a fair procedure must be followed in making the redundancy. This should involve carrying out a consultation process with every employee who holds a similar position.  The purpose of the consultation process is to warn of the risk of redundancy and to allow the employees to voice their opinions and objections and put forward alternative suggestions.  The majority of unfair dismissals on the grounds of redundancy are found to be unfair because of the inappropriate or unfair application of the selection criteria.  It is therefore essential that objective criteria precisely defined and capable of being applied in an independent way are used.  The cost of getting it wrong is currently up to £83,682 (from April 2018) per person for the unfair dismissal compensatory award alone.

How do I deal with multiple numbers of redundancies?

With extreme care. In large-scale redundancy situations there are added and complex obligations for consultation.  In addition to an unfair dismissal award, every employee can recover a ‘protective award’ of up to 90 days’ gross pay for an employer’s failure to consult.  The added obligations apply to employers who propose to dismiss 20 or more employees at one establishment over a period of 90 days or less.  The duty is to consult representatives of any recognised independent trade union, or (if no trade union is recognised) other elected representatives of the affected employees.  Consultation should begin in good time and be completed before any redundancy notices are issued.  As a minimum, consultation must begin at least 30 days before the first dismissal takes effect if 20 to 99 employees are to be made redundant and at least 45 days before the first dismissal takes effect if 100 or more employees are to be made redundant.

How do I avoid discrimination claims?

There is currently legislation to prevent discrimination on the grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. In order to avoid discriminating on these grounds, you firstly need a comprehensive and up-to-date equal opportunities policy.  The existence of such a policy is usually the best starting point in defending a discrimination claim.  However, you must also ensure that the policy is implemented properly and communicated to every member of staff.  Secondly, line managers and senior members of staff should be trained in equal opportunities.  We can provide this training for you, either at your premises or at ours, tailored to the specific needs of your business.  Be aware that compensation for discrimination claims is potentially unlimited.

Can I prevent my employees from going to work for my competitors after their employment with me terminates?

Potentially, yes. You would need to ensure that your employees are subject to valid restrictive covenants.  Provided these restrictions were tailored specifically to your business and the individual employee, and provided that the restrictions lasted for only a specified period of time, they could be legally enforceable.  The existence of restrictive covenants can act as a deterrent to employees thinking about working for a competitor.  They can also be used to obtain an injunction to physically prevent the former employee from continuing working for a competitor.  Well drafted restrictive covenants are a sound investment to protect your business.

Is there any way I can prevent an employee from bringing employment tribunal proceedings against me by getting him/her to sign an agreement?

Yes, this can be done even before any proceedings are issued by using a settlement agreement (previously known as a Compromise Agreement). This is a legally-binding agreement which provides that in return for some consideration (ie money or something of value) the employee gives up all potential employment claims he/she could bring.  In order to make the agreement legally binding, the employee must obtain independent legal advice (for which the employer usually contributes some money towards the fees).  Settlement agreements are widely used by employers as they are often the cheapest and most amicable way of resolving any potential dispute.  They provide certainty and finality for both parties and can be concluded within a matter of days

Do I have to agree to a request to work part-time?

Prior to 30 June 2014, only limited categories of employees (most commonly those with child care responsibilities) were entitled to apply to work flexibly. However, after that date employees with at least 26 weeks’ continuous employment will be able to make a request for flexible working for any reason.  Employers are obliged to deal with the request in a reasonable manner and to notify the outcome to the employee within a three-month period.  The legislation sets out eight reasons on which an employer is permitted to refuse a request.  In addition, an ACAS Code of Practice provides practical guidance and best practice examples to support the legislation. In addition, employees caring for adults are also eligible to make a request to work flexibly.  If requests to work flexibly are made for reasons connected to an employee’s disability or religion, care must be executed in ensuring that such requests are also carefully considered.  If they are not, or if they are unreasonably refused, the employee could succeed with a discrimination claim.

What is the current National Minimum Wage?

The National Minimum Wage is revised each financial year by the government. From 1 April 2016 the National Living Wage was introduced for those aged 25 and over and this also changes each year. As of April 2018 the rates are:

National Living Wage (for those 25 and over):   £7.83 per hour

21 to 24:                                                           £7.38 per hour

18 to 20:                                                           £5.90 per hour

Under 18:                                                         £4.20 per hour

Apprentices:                                                     £3.70 per hour

The government provides the current and previous rates via its website at www.gov.uk/national-minimum-wage-rates .

What happens to employees on the sale of a business?

Legislation preserves an employee’s terms and conditions of employment when a business or ‘undertaking’, or part of one, is transferred to a new employer. The legislation means that:

  • employees employed by the previous employer when the undertaking changes hands automatically become employees of the new employer on the same terms and conditions and their continuity of employment is preserved;
  • representatives of employees affected have a right to be informed about the transfer. They must also be consulted about any measures which the old or new employer envisages taking concerning affected employees.

The requirements apply regardless of the size of the transferred undertaking or business.

Breach of the requirements can result in unfair or constructive dismissal claims, just and equitable ‘detriment’ awards and up to 13 weeks’ gross pay for failure to inform and consult.

What limits on work are set by the Working Time Regulations?

The Regulations set the following limits:

  • a maximum average of 48-hours per week over a 17-week period. However, workers can agree to work longer provided they sign a written agreement;
  • a maximum average of 8 hours’ work in 24 hours which night workers can be required to work;
  • a right to 11 hours rest a day;
  • a right to 24 hours uninterrupted rest per week (or at the employers choice, 48 hours uninterrupted rest per fortnight);
  • a right to a break of 20 minutes if the working day is longer than 6 hours;
  • a right to 5.6 weeks (28 days) paid leave per year.

What are the implications of age discrimination legislation?

Age discrimination covers people of all ages, young and old. The legislation means that employers cannot recruit, train, promote or dismiss people on the basis of age, unless it can be objectively justified.  Compensation recoverable, if discrimination is found to have occurred, is potentially unlimited.

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