Employment for You

Employment for You

Employment law encompasses all the legal rights and liabilities that may arise within the workplace.  This can be anything from contracts of employment through to dismissal, discrimination and equal pay. It extends beyond employer and employee as can also cover the self-employed, contractors and other categories of workers. Individuals may feel disadvantaged in terms of employment law and that their case is ‘unwinnable’ when taking on a business.

At Coole Bevis LLP we disagree. We are able to deal with all aspects of employment law, whether you are seeking advice or engaged in an acrimonious dispute. We aim to explain in clear language the legal issues relating to your problem, and help you resolve issues quickly, where possible avoiding costly disputes. If necessary we will bring or defend legal proceedings in employment tribunals.

Aspects Of Employment Covered By Law

We act for employees, workers and groups of workers. Our clients have included senior employees with complex contracts, remuneration structures and reward packages, workers on minimum or below minimum wages with basic contracts or no written contractual provisions, and anyone in between.

Some examples of where we can assist:

  • Helping you negotiate contractual terms prior to the start of your employment or on a change of circumstances such as a promotion or ‘sideways’ move.
  • Advising you about disciplinary or grievance procedures you may be facing, or in connection with any other issue you may wish to raise such as maternity, paternity and family rights and discrimination issues.
  • Providing advice where redundancy is threatened or has been notified to you.
  • Advising you about your statutory or contractual rights including, for example, claims of unfair dismissal and discrimination.
  • Assisting you with other ‘end of employment issues’, including Settlement Agreements.
  • Advising on the enforceability of post termination restrictive covenants and assisting you with defending proceedings brought by an employer seeking to enforce any such restrictive covenants.
  • Supporting you with specific employment tribunal or other proceedings

Contract Law

An employment contract gives both an employee and an employer certain obligations and responsibilities they both need to follow for the employment to work. These are known as ‘contractual terms’. An example of a contractual term is employees having the right to be paid for the work they carry out.

Changes To A Contract Of Employment

If your employer decides they need to make a change to your contract they should make a ‘variation’ within the contract or a ‘flexibility clause’ to allow the change. Both the employer and the employee/employee’s representatives must agree to the change. An example of an employee’s representative could be a trade union member.

Equal pay

All employers must afford men and women equal pay for work that is the same or largely similar work or for work deemed of equal value in terms of effort, ability or decision making.

If an employer does not does not provide equal pay for the same work and a claim is made, they must provide a reason for the difference and this must be a genuine factor not based on the employee’s gender.

Can An Employer Change Your Job Description?

In a contract of employment an employer cannot lawfully vary or make changes to your duties as an employee without agreement from yourself. A consultation should be carried out before changes are made to ensure staff have considered the changes and agree to the new contract of employment.

What Can I Do If I Have A Problem With My Contract?

If you have a problem with your contract you will need to consult your employer. The contract cannot be altered until you have both agreed on the change. If this is unavailable to you, then a collective agreement can be made between yourself and your employer or trade union member/staff association.

Can A Company Legally Reduce My Pay?

A company cannot reduce your working hours or give you a pay cut unless they have changed your contract of employment. Changes to contracts of employment must be agreed by both the employer and employee.

The only times where deductions from pay might be acceptable would be for National Insurance, tax or previous overpayment purposes. These, however, must all be outlined in your contract.

Implied/Express Terms

  1. Expressed – These are terms which have been specifically mentioned and agreed upon by both parties at the time the contract was made. This includes pay, hours and holiday.
  2. Implied – These terms are not implicitly stated because they should be fairly apparent to both parties in the contract of employment. This includes the right to equal pay, an employer offering a duty of care or protection from discrimination/harassment.

Discrimination

What Is Discrimination?

Discrimination defines the prejudicial treatment of someone from a particular group and can include race, age, religion or disability among others. Discrimination within employment is illegal in the UK.

Types Of Discrimination

These are just a few of the numerous ways someone can be discriminated against in the workplace

  • Sexual harassment or discrimination because of sex or sexual orientation
  • Victimisation
  • Age
  • Parental Status
  • Disability
  • Gender Identity
  • Making someone else discriminate

Victimisation

This type of behaviour is conduct from an employer towards an employee and can occur after an employment has ended. This could for example be in retaliation bringing or supporting a complaint of discrimination under the Equality Act.

An example of victimisation could include refusing to promote an employee because they had time off for a grievance.

If you feel that you are the victim of any of the types of behaviours listed below, you should contact your solicitor swiftly as there may be time limits for bringing a claim.

Harassment

Workplace harassment occurs when a person feels intimidated, degraded, humiliated or offended and is picked upon due to what are known as “protected characteristics”, such as race or religion. Examples include spreading malicious rumours or unfair treatment. The employer may be liable for any harassment even if they are unaware of the situation.

Pregnancy Discrimination

This is unfair or unfavourable treatment because you are pregnant, breastfeeding or perhaps you have recently given birth. Under The Equality Act 2010 there is a ‘protected period’ from discrimination which starts from when someone becomes pregnant and ends when maternity finishes or when they return to work.

If you do not have the right to maternity leave the protected period will be two weeks after your child has been born. There is no qualifying period to bring a claim for this type of discrimination but it must be proved that you would not have received the same treatment had you not been pregnant or on maternity.

Sickness And Health And Safety During Pregnancy/Maternity

All employers must ensure that working conditions do not put yours or your baby’s health at risk during pregnancy or after maternity leave leading up to six months or until you stop breastfeeding. There are a number of possible risks would could affect your safety at work including:

  • Physical agents such as manual handling, noise and radiation
  • Biological agents such as infectious diseases
  • Chemical agents such as carbon monoxide and other toxic chemicals
  • Working conditions such as mental and physical fatigue, travelling, violence and passive smoking.

Time Off For Antenatal Care

Antenatal care refers to the time pregnant employees will need off work to attend medical appointments and/or parenting classes. Employees will not be able to take time off until they have told their employers about the pregnancy but they should then be able to take reasonable time off with pay for antenatal care.

Adopters should also be allowed time off for adoption appointments and surrogacy parents as well as fathers, partners and civil partners should be permitted paid time off for up to two antenatal visits.

Areas Of Sex Discrimination In Employment

There are four categories of sex discrimination in the UK under the Equality Act 2010. These include direct discrimination, indirect discrimination, harassment and victimisation.

Direct Sex Discrimination

This occurs when someone is treated differently because of their gender, or perhaps less favourably than the opposite gender. Direct discrimination does not have to be their own sex as it can also be their perceived sex or their relationship with someone of a particular sex.

For example, if a woman applies for the same job as a man but is told she will not be paid as much as the man this would be direct discrimination.

Indirect Sex Discrimination

Indirect discrimination occurs when a workplace rule disadvantages a particular sex.

For example if a company requires all of its employees to work full time this can be seen as discrimination because women may have more caring responsibilities for their young children and it might be more difficult for them to work full time.

Disability Discrimination At Work

This type of discrimination occurs when you are treated less favourably because of your disability than someone without a disability in the same circumstances. Examples of disability discrimination include:

  • Dismissal or redundancy because of your disability.
  • Your employer failing to make adjustments for you to carry out duties.
  • Offensive comments from other employees or your employer about your disability or perhaps your employer failing to respond to any comments made.
  • Disciplinary actions or dismissal due to certain behaviours which have been caused by your disability. An example of this is dismissal due to repeatedly being late which would not have been cause if you had appropriate entry to your place of work.

Proving Discrimination

Workplace discrimination can occur in a number of forms and sometimes proving discrimination can be difficult. The types of workplace discrimination are as follows:

Associative Discrimination

This is the act of discriminating against an individual because of their association with another person who has a ‘protected characteristic’. This can be a number of things including age, gender, religion, sexual orientation and a number of others under the Equality Act 2010.

For example an employer may discriminate against an employee who discusses they attended a Hindu festival. The employer might know the employee is not Hindu but will have an issue with the situation regardless.

Perceptive Discrimination

This is the discrimination against an individual because they have a wrongly perceived protected characteristic. An example of this could be if an employer believes their employee is gay and as a result the employee is treated less favourably than others.

Indirect Discrimination

This is the discrimination against an individual because they have a wrongly perceived protected characteristic. An example of this could be if an employer believes their employee is gay and as a result the employee is treated less favourably than others.

This occurs when there is a practice, policy or a rule applying to everyone in the same way, but the repercussions have a worse effect on some people than others. The Equality Act 2010 names this as a ‘particular disadvantage’.
An example could be if a company introduces a new dress code which creates indirect race discrimination. This could be prohibiting cornrow hairstyles which is more likely worn by a particular racial group.

If you believe you have suffered any type of discrimination you should keep a record of all situations where the discrimination took place and seek legal advice as soon as possible.

Employment Rights

Otherwise known as statutory sights, employee’s rights have been laid down to ensure all individuals are treated fairly in their place of work and have been put in place by the state (UK). Rights will differ depending on type of employment along with other variables and your employment contract.

Employment Rights If You Are Self-Employed

Self-employment means that you are your own employer. As a consequence, you may forfeit the right to:

  • Statutory and sick pay or redundancy pay
  • Maternity, adoption and paternity leave
  • Unfair dismissal
  • National minimum wage
  • Rest breaks, holiday and limits on night work
  • Protection against deductions from pay

If you are self-employed you will still have other rights such as statutory rights against discrimination. You will also have protection under work health and safety rules and any contracts you may have with clients should ensure that they have details of rights and responsibilities for both parties.

You will still have access to things such as your state pension and welfare benefits. The Department of Work and Pensions (DWP) should offer support and employment allowances if you become ill.

Employment Rights If You Are On A Zero Hours Contract

This type of contract means an employer cannot guarantee you any hours of work, however when work is offered the opportunity can be accepted or turned down.

Everyone who is on a zero hour’s contract is entitled to statutory rights. This includes minimum wage, paid annual leave, rest breaks and protection from discrimination.

Redundancy And Dismissal

Redundancy arises in just three ways: when there is a closure of the business, a closure of the workplace or the employer has less need for employees.

People commonly say that they have been made redundant. In fact this is technically incorrect, as the redundancy relates to the job and not to the person.

Unfair Dismissal

Employers can dismiss people for a number of reasons, but to be a fair dismissal it must fall into one of the categories set out in the Employment Rights Act 1996:

  • The employee lacked capability or qualification for the work they were employed to do.
  • The employee was guilty of gross misconduct. Examples of this might include dishonesty, indecent or offensive behaviour or perhaps their failure to follow reasonable instructions.
  • The employee can no longer legally perform their job. For example, if an employee’s job is as a driver and they are banned following a drink driving conviction.  If the employer has no other work for them, they could be dismissed.
  • Redundancy.
  • The employee must have been dismissed for ‘some other substantial reason’ known as SOSR. This is valid dismissal not falling into the above categories.

If you feel you have been unfairly dismissed, it is possible you may be entitled to compensation. However claims have a qualifying period so if you should contact a solicitor as soon as possible.

Wrongful Dismissal

This describes a breach of contract from the employer. An example is failure to give the correct notice to an employee in accordance with the entitlement set out in their contract. Unlike unfair dismissal, there is no qualifying period to claim wrongful dismissal.

Constructive Dismissal

This occurs when the employer has committed a serious breach of contract, therefore allowing an employee to resign in response to that conduct. This is referred to as a ‘repudiatory breach’ by the employer and the employee is entitled to the same treatment as they would if they had been dismissed.

An example of this might be demoting an employee without their agreement or failing to pay an employee their correct wages.

Voluntary Termination Of Employment

Otherwise known as voluntary redundancy, this is where an employer asks an employee to agree to terminate their contract in return for a financial incentive. The decision is left up to the employee and does not have to be taken.

Legal rights will be no different from compulsory redundancy and under the Employment Rights Act 1996 it is still classed as dismissal.

Non-Disclosure Agreements

Otherwise known as a confidentiality agreement, this contract typically means people cannot disclose information to another party. For example, if you own a business and hire an employee who signs a non-disclosure agreement, they will not be able to disclose trade confidences to other parties named in the contract.

If you require the drafting of a non-disclosure agreement, our solicitors are able to offer professional, exclusive guidance allowing parties to cooperate with each other for mutual improvement.

Confidentiality Clauses

A confidentiality clause is a section in a confidentiality agreement or non-disclosure agreement whereby one party agrees to the disclosure of proprietary information as part of a business transaction with another party. In simple terms it is a promise to say information will be maintained in secrecy.

Employment Disputes Resolution

Disputes with an employer can induce a lot of stress on individuals, particularly when you find you are out of a job and your reputation has been damaged. Our employment solicitors are there to help you through the difficult times a dispute can cause, avoiding court as much as possible in the process.

What can we help you with?

  • Contract Law including breach of contract, confidentiality clauses and covenants
  • Discrimination, bullying and harassment
  • Employment Rights
  • Unfair dismissal and redundancy
  • Regulatory Investigations
  • Tribunal representation

Whatever your position, from employee to director, we have a team who will understand what you are going through and help you to resolve any employment issues affecting your life.

ACAS (Advisory, Conciliation and Arbitration Service)

The Advisory, Conciliation and Arbitration Service (ACAS) is an organisation which endeavours to improve companies and the lives of employees through problem solving and setting out guidelines for organisations to follow. The information they provide is free and impartial on all aspects of employment law.

What Is The ACAS Code Of Practice?

This Code of Practice outlines the disciplinary/grievance procedures and how they should be handled within a workplace. If an organisation decides not to follow procedures this is misconduct. An organisation must have reasons for not following the Code of Practice and if it reaches tribunal stage the reason will be thoroughly explored.

Most issues can be resolved before they go to court, particularly those which are minor misconduct. ACAS are able to provide a standard for reasonable behaviour within most cases but if there are some cases where formal action is needed and investigations will need to be carried out to find case facts.

Has Your Employer Breached The ACAS Code?

If in an employment tribunal it is proved your employer has not followed the ACAS code, compensation can be increased by up to 25%. Reasons you employer may be breaching the code are most commonly:

  • They have not set out allegations made against you
  • You have not been told about a possible disciplinary outcome
  • Your employer has not provided copies of evidence against you
  • You have not been advised that you can be accompanied to a disciplinary hearing
  • You have not been offered a right of appeal by your employer
  • Both the person who deals with your disciplinary and your appeal are the same

However if you are an employee, you must follow the ACAS code yourself or your compensation could be reduced.

The Role Of ACAS In An Employment Tribunal Claim

If you intend to make an Employment Tribunal claim, it is crucial ACAS are made aware so early conciliation can be organised. This where an impartial ACAS conciliator can have a discussion with both parties in an attempt to resolve differences. This early conciliation period can be up to a month but an extended time of 14 days can be added if necessary.

This route to solving disputes is heavily encouraged as it is faster, cheaper and far less stressful than attending a tribunal.

Enforcing Your Rights

A first step to enforcing your rights should be trying to find why your employer is not respecting the rights that you have. In many cases it is because an employer does not know the rights themselves, therefore unaware their behaviour is unacceptable.

If you feel your rights have not been respected you should seek professional advice as soon as possible as the deadlines for employment tribunals are very short.

Outcome Of Settlement Agreements

Settlement agreements offer the benefit of certainty and a clean break between an employee and their employer. They can be produced for disciplinary/redundancy processes or can be used for bringing disputes to a close.

ACAS have a Code of Practice for Settlement Agreements which discloses how a settlement agreement should be operated and how best to negotiate between parties. This code is not binding but should be used as a guideline and if not adhered to employers would have to justify their reasons for this.

EMPLOYMENT DEPARTMENT

FAQ’s

Does My Employer Have To Provide ‘Reasonable Accommodations’ To Me?

One in five people in the UK currently live with a disability. If someone has either a physical or mental impairment this means they may be unable to carry out daily activities.

Reasonable adjustments for disabled people should be made for an employee if they are practical but changes will differ depending on the individual and their needs. An employer should ensure policies and practices do not put a disabled person at a disadvantage if they are a successful job applicant.

Adjustments can vary from ramps for wheelchair users to modifying performance targets.

If an employer fails to make the correct and reasonable adjustments for a disabled employee then this is deemed discrimination and a claim could be made.

Can My Employer Change My Contract Of Employment?

A contract of employment cannot legally be changed without agreement from both employer and employee. An employer should clearly state any proposed changes to the contract terms and employees should be given time to consider the changes so they can plan ahead.

What Is The Equality Act?

The Equality Act covers a number of employment elements protecting employers, employees, applicants and former staff of businesses. Those who are discriminated against at work for any reason, such as for having a disability will be covered by laws under the Equality Act and statutory rights.

Protection From Harassment Act 1997

Harassment can occur in a number of forms. You may feel harassed if you have been made to feel distressed, humiliated or threatened. The Protection from Harassment Act 1997 is in place so that those imposing harassment may be prosecuted as it is a criminal offence.

If you feel as though you have been a victim of any type of harassment at work you should contact a solicitor as soon as possible.

What are your costs for Employment Tribunals?

Our pricing for bringing and defending claims for unfair or wrongful dismissal:

Simple case: £5,000 to £7,500 (plus VAT)

Medium complexity case: £7500-£12500 (plus VAT)

High complexity case: £20,000-£30,000 (plus VAT)

We charge based on an hourly rate which varies depending on the member of staff dealing with your matter. Our lowest hourly rate is £140 and our highest hourly rate is £260. The seniority of the members of staff dealing with your case will depend on its complexity. We will discuss this with you when you instruct us.

Factors that could make a case more complex:

  • If it is necessary to make or defend applications, to amend claims, or to provide further information about an existing claim;
  • Defending claims that are brought by litigants in person;
  • Making or defending a costs application;
  • Complex preliminary issues such as whether the claimant is disabled (if this is not agreed by the parties);
  • The number of witnesses and documents;
  • If it is an automatic unfair dismissal claim. For example, if you are dismissed after blowing the whistle on your employer;
  • Allegations of discrimination which are linked to the dismissal.

There will be an additional charge for attending a Tribunal Hearing of £2,500 per day (plus VAT). Generally, we would allow 1-3 days depending on the complexity of your case.

Disbursements

Disbursements are costs related to your matter that are payable to third parties, such as court fees. We handle the payment of the disbursements on your behalf to ensure a smoother process.

Counsel’s fees estimated between £2,500 to £3,500 per day plus VAT, (depending on experience of the advocate) for attending a Tribunal Hearing (including preparation).

Key stages

The fees set out above cover all of the work in relation to the following key stages of a claim:

  • Taking your initial instructions, reviewing the papers and advising you on merits and likely compensation (this is likely to be revisited throughout the matter and subject to change);
  • Entering into pre-claim conciliation where this is mandatory to explore whether a settlement can be reached;
  • Preparing claim or response;
  • Reviewing and advising on claim or response from other party;
  • Exploring settlement and negotiating settlement throughout the process;
  • preparing or considering a schedule of loss;
  • Preparing for (and attending) a Preliminary Hearing;
  • Exchanging documents with the other party and agreeing a bundle of documents;
  • Taking witness statements, drafting statements and agreeing their content with witnesses;
  • preparing bundle of documents;
  • Reviewing and advising on the other party’s witness statements;
  • agreeing a list of issues, a chronology and/or cast list;
  • Preparation and attendance at Final Hearing, including instructions to Counsel.

The stages set out above are an indication and if some of the stages above are not required, the fee will be reduced. You may wish to handle the claim yourself and only have our advice in relation to some of the stages. This can also be arranged on your individual needs.

How long will my matter take?

The time that it takes from taking your initial instructions to the final resolution of your matter depends largely on the stage at which your case is resolved. If a settlement is reached during pre-claim conciliation, your case is likely to take 4-8 weeks. If your claim proceeds to a Final Hearing, your case is likely to take 30-60 weeks. This is just an estimate and we will of course be able to give you a more accurate timescale once we have more information and as the matter progresses.

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OUR OFFICES

Brighton Solicitors

Lanes End House,
15 Prince Albert Street,
Brighton BN1 1HY
t. +44 (0)1273 323231
f. +44 (0)1273 820350
info@coolebevisllp.com

Horsham Solicitors

14 Carfax,
Horsham,
West Sussex RH12 1DZ
t. +44 (0)1403 210200
f. +44 (0)1403 241275
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Hove Solicitors

79 Church Road,
Hove,
East Sussex BN3 2BB
t. +44 (0)1273 722532
f. +44 (0)1273 326347
info@coolebevisllp.com

Worthing Solicitors

5 The Steyne,
Worthing,
West Sussex BN11 3DT
t. +44 (0)1903 213511
f. +44 (0)1903 237053
info@coolebevisllp.com