Employment Law for Individuals
The Employment Law team recently joined Askews Legal LLP, following the incorporation of De Marco Solicitors, Coventry & Warwickshire specialists in Employment & Business Law. Sandra Garlick and Lianne Payne have featured for several years as Leading Lawyers in the Legal 500.
At De Marco Solicitors [now Askews Legal LLP], Lianne Payne is ‘attentive, knowledgeable, approachable and reassuring’; Sandra Garlick shows ‘energy, enthusiasm and empathy’; and Natalie Roach is ‘brilliant’. The firm’s client base has a strong SME focus. (Legal 500 2014 Edition)
We understand how stressful employment law problems are and we ensure that we resolve your Employment Law issue as quickly and as economically as possible. Our solicitors don’t just find legal solutions, we also recognise that a commercial outcome is frequently required. Whether you need advice on a Settlement Agreement or assistance with a Tribunal claim, our specialist employment law solicitors can help you through each stage of your case.
We offer a free initial telephone consultation and in some cases* may offer a No Win No Fee agreement (*subject to risk assessment). So call us today on 024 7623 1000 and we could be helping you straight away.
Our team of specialist solicitors provide expert legal advice on all aspects of Employment Law to include:
Unfair dismissal – the basics
For a dismissal to be fair an employer must have a potentially fair reason for the dismissal and must have acted reasonably in treating that reason as sufficient to justify dismissing the employee.
There are five potentially fair reasons for dismissal including conduct, capability or qualifications, redundancy, breach of a statutory duty and “some other substantial reason”. Only the facts known to the employer at the time of the dismissal will be taken into account by the tribunal when deciding the reason for the dismissal
In most cases, an employee must have 2 years’ continuous service to be able to bring an unfair dismissal claim, although there are exceptions. A claim must be brought within 3 months of the date of dismissal. There are now fees for issuing employment tribunal claims.If successful, an employee may be awarded compensation, comprising of a basic award and a compensatory award.
The basic award for unfair dismissal is calculated according to a formula based on an employee’s age, length of service and weekly wage. The employee’s weekly pay is subject to a statutory limit, currently, £464 per week gross. Accordingly, an older, longer serving, higher paid employee will be awarded a higher basic award than a younger, shorter serving, lower paid employee dismissed in identical circumstances.
Financial compensation is the principal remedy awarded in the employment tribunal. The Compensatory award is calculated on the basis of net loss of earnings together with any other sums/benefits the employee reasonably expected to receive had they remained in employment, e.g. bonus, commission, private medical insurance. A tribunal will normally assess the cash value of the benefit with reference to what it would cost the employee to obtain the benefit elsewhere.
At the outset, calculation of the compensatory award is very much a crystal ball exercise. It is unknown how long the employee will remain unemployed or whether any new job will be at a corresponding level of salary/benefits. The compensatory award is subject to a statutory cap, currently £76,574. Where the date of dismissal is after the 29 July 2013, the maximum compensatory award is now the lower of the current statutory cap or 52 weeks’ gross pay.
Contrary to popular belief, the compensatory award is largely not dependant upon the actual unfairness of the dismissal, that is, there is not a lower award for employees who are dismissed with a ‘softly softly’ approach and a higher award for those fired Alan Sugar style in an open plan office. The overriding intention is to put the employee back in the position they would have been financially, had they not been unfairly dismissed. Accordingly, a higher paid employee who is out of work for longer is likely to be awarded a higher compensatory award than a lower paid employee who quickly finds another job, but who is dismissed in identical circumstances.
Loss of statutory rights
Once dismissed, an employee will have to build up enough service with a new employer to qualify for certain statutory rights, e.g. a redundancy payment or 2 years’ continuous employment for unfair dismissal protection. Tribunals will often award a nominal amount by way of compensation for this loss of statutory rights as part of the compensatory award, currently in the region of £300.
ACAS Code of practice
The ACAS code of practice on disciplinary and grievance procedures applies to disciplinary matters (including dismissals) concerned with misconduct or capability only. When deciding whether an employee has been unfairly dismissed for conduct or capability, a tribunal will consider whether the employer has followed a fair procedure. The compensatory award can be affected by up to 25% (an uplift or reduction) if either party unreasonably failed to follow the Code.
In certain cases, the compensatory award can be reduced to reflect the likelihood that, despite an employer’s failure to take certain procedural steps as part of a fair dismissal process, it would not have made a difference to the decision to dismiss the employee. The reduction may be expressed as a percentage reduction (up to 100% in some cases) or as a cap on loss.
Contributory fault (or contributory conduct)
A reduction for contributory fault can affect the basic award and/or the compensatory award. The reduction can be anything up to 100%. There is, however, an important distinction.
The basic award may be reduced where the employee’s conduct before the dismissal is such that it would be just and equitable to reduce the award. There is no need for the conduct to have contributed to the dismissal or for the employer even to have known about it at the time of dismissal. Where the dismissal was to any extent caused or contributed to by any action of the employee, then the compensatory award may be reduced by such proportion as it considers just and equitable.
An employee is required to mitigate their loss and explain and demonstrate to the tribunal what actions they have taken by way of mitigation. This includes looking for another job and applying for available state benefits. The employee cannot simply assume that an employer will be ordered to pay compensation for their full losses.
For further information about disciplinary/dismissal action or employment tribunals, please contact Lianne Payne, Head of Employment Law on 024 7623 1000
Are you at risk of redundancy?
It is essential that Employers comply with the law in relation to consultation and selecting the appropriate roles for redundancy.
Our solicitors have extensive experience on advising throughout this difficult and stressful process. For further advice and assistance, please call Lianne Payne, our Head of Employment, on 024 7623 1000
Have you been offered a Settlement Agreement by your Employer?
A settlement agreement is a legal contract between you and your employer. Settlement agreements are often used when an employee is leaving their job and the parties want to agree the terms of the employee’s departure, but they may also be used in a variety of other circumstances, including simply to facilitate a swift clean break. As part of the agreement, the employer usually agrees to pay the employee a sum of money and, in return, the employee agrees that he or she will not bring any Employment Tribunal claims against the employer.
Call our employment team today on 024 7623 1000 to talk to us about your situation and how we can help you.
The protected characteristics under the Equality Act 2010 are: Age, Disability, Gender reassignment, Marriage and civil partnership, Pregnancy and maternity, Race, Religion or belief, Sex and Sexual orientation.
It is usual to outline how discrimination and harassment in the workplace will be dealt with in a policy within the Staff Handbook.
Our solicitors can advise on any issues arising from alleged Discrimination.
If you require advice and assistance in relation to an employment law issue relating to Discrimination in the workplace, please all Lianne Payne, our Head of Employment, on 024 7623 1000.
Early Conciliation via ACAS
What does this mean for you?
Prior to issuing an employment tribunal claim, a potential Claimant will need to complete an Early Conciliation form lodging details of their potential dispute with ACAS. An ACAS Early Conciliation Support Officer (ESCO) with then make a ‘reasonable attempt’ to contact the prospective Claimant to take further details regarding their complaint and seek their permission to contact the Respondent Company.
If ACAS is unable to contact either party for the purposes of conciliation, or permission is not given by the Claimant to contact the Respondent Company, ACAS will conclude that settlement is not possible. ACAS will then issue an Early Conciliation (EC) Certificate to the Claimant which will then enable the Claimant to lodge Employment Tribunal Proceedings.
For further information about Early Conciliation, advice in relation to a COT3, Settlement Agreement or Employment Tribunal Proceedings, please call Lianne Payne, Head of Employment on 024 7623 1000.
It is a legal requirement to provide for employees to be provided with a Grievance and Disciplinary policy along with a contract of employment within 2 months of the commencement of your employment. These are usually contained in a Staff Handbook.
Our solicitors can assist you through the disciplinary and grievance processes.
Contact our Head of Employment, Lianne Payne, for further advice and assistance on 024 7623 1000.
TUPE (Transfer of Undertakings (Protection of Employment) Regulations) often apply when a business is purchased or sold or a contract for services is awarded to a new provider.
These regulations are complex and do not apply in all circumstances. It is therefore essential to get advice at the earliest opportunity to ensure that you are being treated fairly by your employer.
For further advice and assistance, please call our Head of Employment, Lianne Payne, on 024 7623 1000.
We may be able to offer you a No Win No Fee agreement, subject to an initial assessment of the prospects of your case. This is an agreement whereby we take an agreed percentage of your award at Tribunal for our fees. Your Tribunal Fees may be covered by an insurance policy
For further information and assistance, please call our Head of Employment, Lianne Payne, on 024 7623 1000.
You may already have legal expenses insurance to cover your legal expenses to take your matter to tribunal. We can assist you with your claim form and liaise directly with your insurer on your behalf.
For further advice and assistance with your tribunal claim, please call our Head of Employment, Lianne Payne, on 024 7623 1000.