Category Archives: Unfair Dismissal

Worker-Employee, what’s the difference?

Good question, you may say, since October 2016 the government has been carrying out an enquiry into whether the terms “Employee” and “Worker” are properly defined legally. Currently there are three possible categories; “employee”, “worker” and “self-employed/freelance”

“Workers” are entitled to certain employment rights, including, getting the National Minimum Wage protection against unlawful deductions from wages, the statutory minimum level of paid holiday, the statutory minimum length of rest breaks,  to not work more than 48 hours on average per week or to opt out of this right if they choose, protection against unlawful discrimination, protection for ‘Whistleblowing’  and to not be treated less favourably if they work part-time.

“Employees” have all the rights workers have plus the following; Statutory Sick Pay, statutory maternity, paternity, adoption and shared parental leave and pay (workers only get pay, not leave) minimum notice periods if their employment will be ending, protection against unfair dismissal the right to request flexible working , time off for emergencies and Statutory Redundancy Pay.

“Freelance or casual”, have none of the above rights as they are deemed to be “self-employed” and are only covered for general statutory duty of care, for their health and safety and, in some cases, protection against discrimination. Any rights and responsibilities are set out by the terms of whatever contract they can negotiate with their client.

Evidence put before the enquiry, however, suggests that two categories would improve the situation, “employed” and “unemployed”. “Employed” would mean that all workers have the same rights as employees to make things as simple as possible for businesses since tribunal and court judgments so far have not always managed to explain the differences clearly. This often creates situations where businesses look to minimise their legal obligations by trying to structure their relationships slotting people into the least burdensome category, like in the recent Uber case; what might start out as a clear self-employment relationship, in practice can turn into something quite different once the law gets involved.

We’ll have to wait and see what comes of all this but meanwhile if you need any help or advice on this or any other legal topic, give us a call.

Leave a comment

Filed under Arbitration, contract law, Dispute resolution, Employment Law, HR Issues, Mediation, UK Law, Unfair Dismissal, Whistelblowing, Zero hours

I’m feeling stressed!!!

As a result of a recent case relating to workplace stress or depression being seen as a disability, it may be useful to look at the law relating to disability. The law says that if an employee has a disability and is thereby put at a disadvantage compared with non-disabled employees, then the employer has a duty to take such steps as are reasonable to avoid the disadvantage. A disability is legally defined as a physical or mental medical impairment that has a substantial effect on the ability to carry out normal day-to-day activities  and is “long-term”, meaning it has lasted or is likely to last more than 12 months.

Normally these aspects of disability go together so if an impairment lasts more than 12 months it’s probably a medical condition and probably has a substantial effect on that person’s day-to-day activities.  But that’s not always the case. Recently the EAT accepted that clinical depression is a medical condition and it also accepted that it will often be difficult to distinguish clearly between stress and depression. However, the EAT also accepts that these two conditions are different; stress is a reaction to adverse life events so if those events disappear, the stress should resolve itself.

So what should employers do? Well, in practice most employers will be unable to distinguish between stress and depression, but they have a duty of care to take reasonable measures to reduce or avoid stress in the workplace. If as an employer, you can reduce stress as much as possible it will inevitably lead to a nicer place to work and probably also to greater productivity. There are limits of course, work can be stressful. But often there are things managers can do, like improving workflow systems in order to reduce the need for stressful deadlines. Change how you allocate work, not every job is time critical or vitally important so assess each job or task and allocate accordingly; this will significantly reduce pressure on your employees as they will be able to pace themselves.

Remember employee stress and clinical depression can be used in unfair dismissal cases, so it’s always best to minimise the likelihood that these reasons can be used against you, and as always if you need help or advice, give us a call.

Leave a comment

Filed under Duty of care, Employment Law, HR Issues, Mediation, Sick pay, Unfair Dismissal

Some Other Substantial Reason?

This is an interesting legal topic that rarely gets a mention. Most employers, employees and HR professionals are well aware of the main grounds for which an employee can be dismissed; gross misconduct, continuing misconduct after a final written warning, etc. But there is also a “catch all” legitimate ground for dismissal for “some other substantial reason”, or SOSR for short.

In order to dismiss an employee fairly an employer has to have a fair reason and follow a fair procedure, but if for example, an employer is struggling with a “problem employee” whose behaviour is affecting the morale of other staff, the employer cannot fairly dismiss the employee because of his conduct, as the issue is not the conduct itself, but how their conduct affects other members of  staff. Nor do the other fair reasons for dismissal; capability, redundancy or breach of statutory restriction apply in this situation.

Instead SOSR can sometimes be used in the following situations where the employee:

  • Causes significant business disruption because of personality clashes with others
  • Refuses to accept any changes to their employment contract
  • Is likely to divulge confidential business information
  • Can no longer be trusted
  • Causes important customers or other third parties to call for their dismissal.

Despite the above, it is important however, to follow the correct disciplinary procedure at all times regardless of the situation; the employee must have adequate warning, a chance to appeal and any concerns or issues the employee might have that caused his behaviour should be addressed well before any attitudes harden on both sides and dismissal is contemplated.

It is also important to ensure you follow the ACAS code of practice to the letter, because even if the employee contributes towards his dismissal as a result of his behaviour, employers who fail to follow the ACAS code of practice risk incurring financial penalties as well as the dismissal being deemed unfair because the correct procedures were not followed.

As always, if you need any help or advice in this or any other legal matter, why not give is a call?

Leave a comment

Filed under Arbitration, Dispute resolution, Duty of care, Employment Law, HR Issues, Mediation, UK Law, Unfair Dismissal

But I don’t want to go!!

One legal issue that rarely gets mentioned is what happens if a company decides to re-locate. Many contracts of employment include mobility clauses which effectively force employees to move, leave or face dismissal. While these clauses are perfectly legal, should an employee choose to leave as a result of the move it may not just be a simple case of dismissal or dealing with a resignation, and if an employee flatly refuses to move, you may have to acknowledge they’re redundant and pay redundancy or you may find yourself at the wrong end of an unfair dismissal claim.

In a recent case, a company decided to close one of their two sites and move the workforce to the remaining site. The company did make arrangements to make redundancy payments for “exceptional circumstances” to some staff who were elderly or had specific problems which made the move impossible, but during this process, two employees were told to move under their mobility clauses and when they refused to relocate, were dismissed.

The Employment Appeal Tribunal heard that although there was a redundancy situation, the actual reason given for dismissal was “misconduct”; but since the company thought that it could rely on mobility clauses to avoid paying out redundancy payments the Employment Appeal Tribunal found that the actual reason for the dismissals was the employees’ refusal to relocate. The Employment Appeal Tribunal also found that the instruction to relocate to offices on the other side of London to be unreasonable, even with the mobility clauses, so that made the decision to dismiss unfair.

Although these types of cases are always adjudged based on the specific circumstances involved, it pays to consider the company’s options. They demanded that their employees relocate without considering the possible legal ramifications, and had they acknowledged their positions would have been redundant and they could probably have been made redundant fairly which would have resulted in redundancy payments far less than the cost of the legal action and subsequent compensation paid. So if you are planning to relocate or downsize, why not give us a call.

Leave a comment

Filed under Arbitration, Employment Law, HR Issues, Legal news, UK Law, Unfair Dismissal

Dismissing Company Directors

In most cases “boardroom battles” sort themselves out without any need for a recourse to law but there can be instances when a company director must be dismissed and this can be a complex process as a Director is not a normal employee.

Director’s of companies, from SMEs upwards, usually have up to three functions; a Director, an Employee and a Shareholder and in order to dismiss, they must be removed from each role.

The removal of a Director often depends on what is in the company’s Articles; if the Articles empower a Board to dismiss a director, and the majority of directors agree that the individual should go, then this can be decided at a board meeting. If not, the Companies Act gives this power to the Shareholders. Shareholders with more than 50% of the voting power can resolve to remove a director, but there is a special procedure to follow with complicated notice provisions so make sure you check the provisions in the Companies Act first.

As a Director can also be an employee, the company can dismiss a Director in the same way as it can dismiss any other employee. However a majority of the members of the Board must still vote for the director’s employment to end at a board meeting. If a director’s employment is terminated, there is always the risk that they could take the company to an employment tribunal but many companies think this is a risk worth taking.

Lastly you need to consider whether the Director is also a shareholder; check the shareholder’s agreement or the Company Articles for a clause that states that if a director ceases to be a director, they must automatically surrender their shares and how these shares are valued at that moment. If there’s no such clause then the director cannot be removed as a shareholder and alternative arrangements will need to be considered, such as buying back the shares.

Ultimately regardless of the situation it’s always best to try to resolve the matter with the director in question. If you have the power, explain to them that you can go through the above procedures to remove them and given that they cannot prevent it, it may be better for them to negotiate an exit. If you don’t have the power but feel you cannot work with them, then negotiation is still an option; you may still be able to agree an exit.

As always if you need help and advice, give us a call.

Leave a comment

Filed under Arbitration, Commercial law, Company Law, Dispute resolution, Employment Law, HR Issues, Unfair Dismissal

What do they know?

Every time you buy something or get a new job the organisation gets some of your personal information. Companies often trawl through social media to help determine which applicant is right for them. This is all very well until you fail to get your dream job, or your credit rating turns out not as good as you’d hoped.

Well there’s some good news, you do have the right to obtain what personal information you think a company might hold on you; this is called a subject access request. You will need to consider carefully what information you are looking for as there are circumstances in which the organisation can refuse to divulge information. A subject access request is a specifically a request for personal data, so it must relate to you and you must be identifiable in any data provided. You cannot access anyone else’s personal data nor can you get a copy of the full document contains your data. You are entitled to more than just your personal data; you are entitled to a description of the data held about you and the purpose for which it is held.  Organisations often forget the latter, but this can be a useful source of information.

You have to apply in writing and be able to supply identification if asked and pay a small fee, usually £10 Some organisations may require you to fill in a specific form and although you don’t have to do this, it may slow down the response if you do not. The organisation has a 40-day deadline for them to comply with your request. Here are a few tips to help you:

  • Be realistic and design the scope of the subject access request with the above in mind.
  • Be helpful. Although the organisation cannot make you narrow your request, it does not have to comply until it has received the information that it reasonably requires in order to locate the information you are after. Always give clear information so that they can find the information.
  • Be careful what you ask for.  If you make a wide ranging request you might get a large amount of data to review which may not be at all relevant
  • Make sure you make the request to the right organisation.  You may need to make more than one request, especially when dealing with groups of companies.  If in doubt, it may be worthwhile making subject access requests to all the potential data controllers.
  • Make sure to keep records of all correspondence and the deadline date.

If you believe the organisation has withheld information, contact them and remind them of their obligations.   If they have withheld information from you, then they should tell you which exemption they are relying upon. If all else fails refer the matter to the Information Commissioner’s Office.

Remember if you need any help or advice on this or any other legal matter, give us a call.

Leave a comment

Filed under Company Law, Confidentiality, Dispute resolution, Employment Law, HR Issues, Insolvancy, Mediation, Unfair Dismissal, Whistelblowing

Under Pressure?

With the current rash of political resignations and leadership infighting many of us might be forgiven for wondering whether pressure could be brought on employers to dismiss employees in response to a demand by a third party? If you as an employer are asked, or ordered to dismiss one of your employees by an important client or supplier, what would or could you do? Case law has demonstrated that an employer does not necessarily need to establish culpability by the employee. Whatever you decide, it is vital to adopt a rigorously fair procedure because of not only the potential injustice to the employee but also the possibility of an unfair dismissal claim.

You’ll need to consider whether the third party is acting reasonably and has good grounds to take such a step; but the overriding factor is how serious is the risk to your business if you don’t bow to the dismissal demand? Will the major client seriously take their business elsewhere? If these threats are taken seriously, then this can form the basis of a fair and lawful dismissal.

You will need to provide good evidence to demonstrate that you really were under serious pressure to dismiss the employee and that you acted reasonably under the circumstances. Third party pressure, no matter how serious, is not enough to justify dismissal unless the employers can demonstrate they took all reasonable steps to avoid, or mitigate it, including considering moving the employee to another department or account.

Accordingly you should investigate the matter with the client to establish the basis of their objection to the employee’s continued employment and challenge their stance if need be. Be aware that a Tribunal may well ask whether the employer ought reasonably to have taken steps sooner to prevent matters coming to a head.

It doesn’t have to be a major client; pressure to dismiss can come from within the organisation, from the employee’s colleagues.  Working relationships can break down due to conflicting beliefs or characteristics protected under discrimination law, or result in the threat of industrial action unless a particular employee is dismissed.

What is certain , however is that employers should have clear policies and procedures in such situations that will help to mitigate any fall out or defend against any subsequent legal action. As always if you are affected and need advice, give us a call.

Leave a comment

Filed under Arbitration, Dispute resolution, Employment Law, HR Issues, Mediation, Unfair Dismissal