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Partner and Head of Employment Law
Partner in Employment Law
Comprehensive expertise in employment law – from drafting new contracts and day-to-day HR advice to pursuing or defending Employment Tribunal claims.
Partner-led advisory service – providing you with direct access to highly experienced employment law solicitors.
Experienced in advising both employers and employees – our approach enables us to provide holistic and meticulously crafted advice and support.
Pragmatic, bespoke commercial advice – we work hard to find the right solution for you or your business objectives, working to your timescales.
Long-standing client relationships – a substantial amount of our new business stems from client referrals, a testament to the work we undertake.
Industry recognition – proudly hold rankings in The Legal 500 and Chambers and Partners, the industry’s leading independent legal guides.
Legislation makes it unlawful to treat an employee less favourably on specific protected grounds, which are known as protected characteristics – these are age:
Discrimination can be direct or indirect and in the case of disability, there is additional protection for discrimination arising from a disability and a legal duty to make reasonable adjustments. In some instances, but not all, conduct that might otherwise be discriminatory can be lawful because it is considered to be legally justified.
Discrimination includes harassment and victimisation if it involves a protected characteristic.
There is no minimum period of employment needed to bring a discrimination claim, and claims can be pursued in respect of recruitment processes or post-employment treatment as well as with regard to employment.
Yes, awards for discrimination are unlimited. They are based primarily on an award for injury to feelings and compensation for losses, although other forms of award can be made including aggravated damages and damages for personal injury.
Although liability usually rests with the employer of the people responsible for the discriminatory act, the individuals themselves can be personally liable for some discriminatory acts.
The definition of disability in the Equality Act 2010 states that it is a physical or mental impairment which has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities. This is a definition applied by a judge based on the evidence rather than being a medical assessment.
Individuals with cancer, multiple sclerosis and HIV qualify as disabled from the time of diagnosis.
Other progressive conditions qualify as disabilities with immediate protection once the condition has some effect on the ability to carry out normal day to day activities providing the effect will become substantial in the future.
Where a provision, criterion or practice places a disabled person at a substantial disadvantage compared to those who are not disabled, the employer must make reasonable adjustments to avoid the disadvantage. Since adjustments must be reasonable, scrutiny of proposed adjustments is important.
Although it is the employer’s duty to identify and implement such adjustments, in practice, the employee and employer should work together, often seeking medical advice, to identify what adjustments are appropriate and achieve the best outcome for all concerned.
Every situation must be individually assessed, but common adjustments include:
Every employee has a contract of employment. It is formed when the parties reach the stage where terms of employment have been offered and unconditionally accepted with the intention of entering an employment relationship. The law expects that the terms of employment are set out in a written statement, with the document setting out the principal terms provided to the employee by no later than the first day of employment.
The principal terms that must be provided in writing by no later than the first day of employment need to include, among other matters, the following:
Information must also be provided about sick pay entitlement, paid leave (other than holiday) and notice, but this written information need not be in the principal statement.
In addition, the employer must also provide in writing details of the disciplinary and grievance process and pension entitlement, as well as whether any collective agreement affects the employment.
It is best to provide the written statement of employment terms when employment is offered. The statement will cover the obligatory content, but also cover other issues important to the employment relationship. Providing this written statement when the offer is made results in the content forming part of the employment contract ultimately agreed.
Ensuring that content in the written statement forms part of the legal contract can be important to both the employee and employer alike. For an employee, this may be important when agreeing bonus or commission provisions. For an employer, this may be important when seeking to agree post-termination restrictions or confidentiality provisions.
Employers wishing to protect their business against unfair competition from former employees use post-termination restrictions. These primarily apply after the employment ends and they supplement and extend basic restrictions that the law implies.
Typically, such measures include provisions to prevent:
To be enforceable, the restrictions must only go so far as is reasonably necessary to protect legitimate business interests and must be in line with what the law permits.
The starting point is to check the relevant contract for terms reserving the right to make the desired change. If found, the employer can seek to rely upon this, but must still exercise the provision in a reasonable manner. This includes consulting with the employee to identify potential issues and solutions, as well as ensuring sufficient advance notification of the change.
Even if the change is permitted, care must be taken if the employee faces difficulties owing to their personal circumstances. The employer must act reasonably to avoid breaching the implied duty of mutual trust and confidence and must also take care if the employee raises an issue linked to a protected characteristic since making the change could be discriminatory. For example, problems with childcare could involve indirect sex discrimination, whilst issues managing a medical condition could involve disability discrimination.
Where the employment contract does not provide the required flexibility, the employer will need to vary the terms using the correct formal process.
The employer starts by consulting with each employee (assuming a trade union is not recognised), discussing the proposed change and the reasons. The employer needs to identify any issues for the employee, including any that may be linked to a protected characteristic covered by the Equality Act 2010.
The employee may agree the variation, but if not, the employer either needs to revise the proposal to win agreement or look to impose the change.
An ACAS Code of Practice is being introduced, mirroring much of the existing process, and the ACAS guidance should be followed.
However, in overview, the process involves the employer seeking agreement from as many employees as possible and exhausting consultation with the others. Following this, notice of dismissal is served on those who fail to agree without appropriate reason. Additionally, employees given notice of dismissal are offered a final opportunity to accept the varied contract and remain in employment.
Employers must also proceed with caution because the dismissed employees could claim unfair dismissal if they have two or more years of continuous employment. To successfully defend this claim, the employer must be able to evidence compelling reasons necessitating the contractual change and show that it followed a reasonable procedure.
In addition, when proposing contract changes and envisaging dismissal if agreement is not secured, every employee in the process is considered to be a ‘proposed dismissal’. Collective consultation must be conducted, in addition to consulting with individual employees, if the number of proposed dismissals at an establishment (which can mean part of a business) in any 90-day period totals 20 or more. Collective consultation is conducted with a recognised trade union or elected employee representatives and requires that prescribed information is provided and discussed. The collective consultation process must last for at least 30 days, rising to 45 days if there are 100 or more proposed dismissals. Failing to collectively consult potentially renders dismissals unfair, with the remedy that involves, plus it can also result in a protective award of up to 90 days’ pay per affected employee.
All employers should have a disciplinary and grievance procedure since these form part of the information that an employer must provide under the Employment Rights Act 1996. Employers also need to have in place suitable measures to deal with health and safety and data protection obligations.
Regardless of an employer’s size, it is prudent to have several other policies and procedures to outline to employees what your expectations are and what procedures should be followed. Examples include a Discrimination, Harassment and Bullying Policy; an Information Technology Policy (including social media); and an Absence Notification Procedure and Capability Procedure.
As employers become larger, the number of policies and procedures required will increase and they may be consolidated in an employee handbook. At this stage, additional content is usually developed, for example, an Alcohol and Drugs Policy; a Home-working Policy; a Time Off Rights Policy; and a Whistleblowing Policy – a handbook will typically cover a wide array of further topics to set standards for the workplace.
An employer’s policies and procedures are generally reserved as non-contractual to enable the content to be evolved as the business changes. The same position is adopted in employee handbooks, but handbooks may also contain a small contractual section that supplements the content of each employee’s own written statement of employment terms.
Although a redundancy only technically arises where a definition in the Employment Rights Act 1996 is met, in essence, redundancy arises when an employer’s need for a job no longer exists, work moves to a different location, or an employer needs a reduced number of employees.
Employers must conduct the redundancy process in a fair manner otherwise any dismissed employees with two years continuous employment will be able to challenge the fairness of their dismissal. The redundancy process must involve genuine consultation, objective selection (where appropriate) and consideration of alternative employment.
Where 20 or more dismissals are proposed at an establishment in a 90-day period, then collective obligations also arise, along with a duty to notify the government using an HR1 form.
If an employee has two continuous years of employment, they will normally be eligible to receive a statutory redundancy payment. Some employers enhance this or offer payments to employees who might not otherwise qualify but will usually require a settlement agreement as a condition of payment.
Keeping redundancy selection free from discrimination is best achieved using objective non-discriminatory criteria, generally focussed upon the competencies required for the roles remaining.
Employers must take particular care when handling redundancies because while seeking to avoid discrimination against one employee, it is easy to inadvertently discriminate against another. Below are some examples of discrimination featuring in redundancy selection:
Legislation supplements these general principles with special rules obliging employers to take specific steps to correct disadvantage. For example, an employer must make reasonable adjustments to remove substantial disadvantage faced by disabled employees, which could mean adjusting a vacancy available for an employee facing redundancy to remove disability related difficulties, such as changing working hours or providing support to enable certain duties to be performed. Additionally, there are special rights for employees facing redundancy who are pregnant or are taking, or have taken, maternity, adoption or shared parental leave.
There is special protection that means qualifying employees are entitled to any suitable alternative vacancy in preference to other employees if their role becomes redundant.
For pregnant employees, this protection begins once they have notified their employer of the pregnancy and continues until 18 months have passed since the date of childbirth.
For those taking Adoption Leave, the protection is provided throughout the period of statutory leave and then following the return to work until a period of 18 months has passed since the child’s placement or the date that the child entered the UK, as applicable.
For those taking Shared Parental Leave, then if they are taking 6 or more consecutive weeks of statutory leave, but not taking either Maternity Leave or Adoption Leave, then the protection is provided during the Shared Parental Leave and until a period of 18 months has passed since the child’s birth or since the child’s placement or the date that the child entered the UK, as applicable.
This can constitute discrimination. This potential pitfall is best illustrated by Eversheds Legal Services Ltd v De Berlin, where a male employee was found to have suffered discrimination when selected for redundancy in preference to a female employee on maternity leave. One of the selection criteria assessed the time taken to secure payment for each employee’s work. The male employee was assessed based upon his results, while the female employee received maximum marks because she had been absent on maternity leave. The Court emphasised that special treatment designed to avoid discrimination, must not favour an employee beyond what is necessary to compensate for the disadvantage. By elevating the female employee too far, the employer committed an act capable of amounting to sex discrimination – the male employee suffered less favourable treatment due to his gender. The Court considered that the employer should have found a less discriminatory way of removing the maternity leave disadvantage, for example, by measuring the performance of both employees at an earlier date when they were on an equal footing.
The claim considers whether the employer had one of the five legally fair reasons for dismissal, and whether the dismissal was conducted using a fair procedure.
If the dismissal is for one of a number of prescribed reasons (for example, health and safety, trade union involvement, pregnancy, whistleblowing), then it will be automatically unfair.
Usually, employees must have two years’ continuous employment to claim unfair dismissal, although when dismissals occur in certain prescribed circumstances, this two-year qualification period will not apply.
When an employee is dismissed without receiving the appropriate notice or payment in lieu of notice.
An appeal against a decision to dismiss promises the possibility that the employer will reconsider and reverse the dismissal. Appeals are also encouraged since, in some circumstances, awards for successful claims of unfair dismissal can be subject to reductions of up to 25% if a right of appeal has not been pursued.
The Court of Appeal decision in Roberts v West Coast Trains Ltd and subsequent cases, have developed a clear principle that when an employer decides an internal appeal against dismissal in favour of an employee, this revokes the dismissal. The effect is to erase the dismissal and the employment relationship is treated as if it had existed throughout.
Although the cases have involved contractual appeals, it is likely that the contractual status of the appeal process makes little difference.
The implications of erasing the dismissal are significant. The employee can no longer claim unfair dismissal – there is no longer a dismissal. However, there is usually an entitlement to back pay.
The employee may respond by resigning to pursue a claim of constructive unfair dismissal based upon the employer’s conduct, since the history of what has taken place is not erased. If so, the employee will be responsible for establishing that there has been a fundamental breach of contract that justifies resigning and treating themselves as constructively dismissed and that dismissal will then also have to be accepted as unfair by an Employment Tribunal if the employee’s claim is to succeed.
The case of Salmon v Castlebeck Care (Teesside) Ltd decided that upholding an appeal has the effect of erasing the dismissal without the need for an express direction to reinstate. This becomes effective as soon as the appeal is decided, which means that the dismissal can be erased before the employee is told.
Maternity leave is an entitlement to take up to 52 weeks of statutory leave in connection with childbirth. The two-week period following the birth is referred to as compulsory maternity leave. An employee may be entitled to pay in respect of some of the maternity leave period, either based upon their contractual terms or by receiving statutory maternity pay.
Qualifying employees are entitled to 39 weeks of statutory maternity pay. The first 6 weeks are paid at 90% of pay, with the remaining 33 weeks at the prescribed statutory maternity pay rate.
Employees who adopt children under the age of 18 have similar employment rights following the adoption to those available to employees in respect of pregnancy and maternity. One adoptive parent (which may be either parent) may take up to 52 weeks of adoption leave. An employee may be entitled to pay in respect of some of the adoption leave period, either based on their contractual terms or by receiving statutory adoption pay.
Paternity leave is available in respect of newly born or adopted children and can be taken by the parent who does not take maternity leave or adoption leave. It permits a period of 2 weeks of leave to be taken within the first year following the birth or adoption. This leave may be taken as two separate weeks during that period.
Qualifying employees are entitled to receive payment at the statutory paternity pay rate.
Shared parental leave (not to be confused with unpaid parental leave) is a form of leave that commences when a person taking maternity or adoption leave chooses to share part of that remaining leave with a qualifying person, such as a spouse or partner. Once the appropriate steps are taken, the maternity leave or adoption leave ceases and both parents move onto shared parental leave. This leave can be taken by each person in a continuous or in up to 3 separate intervals. The parents may opt to take the time off at the same time or different times.
Qualifying employees are entitled to receive payment at statutory rates.
Unpaid parental leave (not to be confused with shared parental leave) permits both parents to take up to 18 weeks of unpaid leave in respect of each child they have aged under 18 years old. To qualify, an employee must have one complete year of service and be named as the parent in the birth or adoption certificate. Up to 4 weeks of this leave per child may be taken by each parent in any year.
Parental bereavement leave permits bereaved parents of a child who dies under the age of 18, or who suffer a stillbirth after 24 weeks of pregnancy, to take up to 2 weeks of leave from their employment within 56 weeks commencing with the date of the child’s death. The leave may be taken as a single 2-week period or as 2 separate 1-week blocks of leave.
Whilst leave is a right available from the beginning of employment, there is only an entitlement to pay after 26 weeks of continuous employment. Payment is at the statutory right in place at the time.
Carer’s leave entitles an employee to unpaid leave to arrange or provide care for a dependant with a long-term care need. The right is available from the commencement of employment and an employee is entitled to take 1 week of carer’s leave in a 12-month period, which may be taken in half or full day increments or as a single 1-week period.
A dependant is defined as:
A long-term care need means that the dependant either:
An employee is permitted to take reasonable unpaid time off work to deal with situations involving dependants and certain other people. The statutory right permits time off to provide assistance in various circumstances, including where there is unexpected illness or injury (including a child taken ill at school), a need to make care arrangements or in the event of death.
There are limited rights to time off where a person is not a dependant but relies on the employee to arrange the provision of care.
At any time after employment commences, an employee may apply for changes to any of their contractual terms relating to:
Examples include seeking part-time hours, homeworking, hybrid working, compressed hours or term time working.
The permissible reasons for refusing a flexible working request are:
However, it is not sufficient to simply attribute refusal to one of these grounds, an employer must be able to substantiate the reason given if challenged.
Additionally, where the request involves a protected characteristic, an employee may be able to challenge refusal of the request under the Equality Act 2010 and the employer will need to be able to evidence that refusal is a proportionate means of achieving a legitimate aim otherwise it risks a finding of discrimination.
Managing people within the law ensures that a business operates efficiently, while creating an appropriate workplace culture. The cost of disruption caused by absence, poor conduct and under-performance are significant, both in terms of productivity and the impact on colleagues, affecting morale and staff retention. Tackling these problems requires an understanding of how to work within the framework provided by the law to minimise the risk of expensive Employment Tribunal claims.
Additionally, employers are expected to take steps to ensure that their workplace is free of discrimination and harassment, which includes providing suitable training and refreshing that training at appropriate intervals.
No. We have a long track record of delivering training and feedback consistently comments on our ability to provide practical and relevant guidance in easy-to-understand language. We train delegates ranging from supervisors and team leaders working on the factory floor through to senior executives, Directors and HR professionals, tailoring our approach to the topics being covered and the delegates attending.
Yes. We encourage delegates to ask questions throughout the workshop so that relevant issues can be discussed at the time we are dealing with subjects. Additionally, our workshops usually use case studies to encourage discussion of the topics we are featuring, which feedback has shown delegates find both useful and interesting.
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