Employee Rights. Everything you need to know

Transcription

1 Employee Rights Everything you need to know

2 If you have a complaint about any element of your work, then you must obtain urgent legal advice. The best way to obtain advice is to contact us immediately. Employment Tribunals operate under very strict time limits and in most cases the time limit for lodging an Employment Tribunal claim against your employer is 3 months less a day, from the date of dismissal, or act complained of. An Employment Tribunal will not consider a claim if it is presented outside this time limit. For example, if you were dismissed on the 5th January, then you have until the 4 April in which to commence Employment Tribunal proceedings.

3 Before you commence a claim in the Employment Tribunal it is good practice to resolve the matter internally with your employer, using grievance or other internal procedures. In addition, from later in 2013 all Tribunal claims will need to be referred to ACAS to attempt to conciliate a settlement of the case. Your union (if you are in a union) representative will advise you and help you prepare your letter of complaint and he or she will guide you through the grievance procedure. If you are not in a union, you should obtain legal advice about the correct procedure to use.

4 Your General Statutory Rights From the outset of employment employees have certain rights which include:- Contract of Employment and Employment Particulars - every employee has a contract of employment, even if it is not in writing. If the contract is not in writing, then custom and practice (how you normally work) will determine the contractual terms. However all employees must receive a written statement of legally required information within 2 months from the commencement of their employment. Union Membership - all workers have a right to join a trade union, take advice from their union, participate in trade union activities and be accompanied by a union representative to certain work related meetings. Time off for Union Activities/ Duties - Workers who become involved in union duties are entitled to time of work to carry out union activities and duties. Itemised Pay Statement - this should be supplied to all workers in receipt of pay. National Minimum Wage - Workers should not be paid less than the National Minimum Wage. Time off for holidays and rest breaks - It is recognised that workers need to rest and spend time relaxing and with their family. Notice - Employees are entitled to notice before their employment is terminated, to allow time to plan and find alternative work. Maternity and Other Family Friendly Leave - Workers are entitled to leave to care for new family members, or close relations who require care & support Equality - Employers must provide a working environment in which all employees are treated equally and is free from discrimination on any grounds. Protection of Wages - Employees must not suffer unauthorised deductions from Wages. Safe Environment - All workers have a right to work in a clean and safe environment which is hazard free. A worker should not be dismissed or suffer a detriment as a result of making health & safety related complaint.

5 Whistle Blowing - Workers should not be dismissed or subjected to a detriment as a result of making a qualified disclosure about the fact that a criminal offence has or is about to be committed, that a person has failed or is likely to fail to comply with a legal obligation, a miscarriage of justice which has or is likely to occur, that the health and safety of an individual has or is likely to be endangered, that the environment has or is likely to be damaged, or that information about any of the above issues is being concealed. Protection from Dismissal - All employees have the right not to be unfairly dismissed, subject to satisfying eligibility criterion. Other rights arise on completion of service, e.g the right to a redundancy payment after 2 years. Employees are able to claim to have been unfairly dismissed after 1 year of service, but for those starting work after 6th April 2012, the new qualifying period is 2 years.

6 Sunday Working All shop workers have the right to opt out of Sunday working (unless they are employed to specifically work Sundays). Employees may opt out of Sunday work by providing their employers with three months signed written notice. Employees who opt out of Sunday work may notice a reduction to their pay because the employer is not obliged to provide alternative hours of work to make up the reduction in working time. Employees who opt out of working time may opt back in to Sunday work, provided that three months written notice is given to the employer.

7 Holidays, Rest Breaks (Working Time) Most employees are entitled to:- 28 days paid holidays per year. A period of 11 hours in between days in work. Your contract of employment may provide you with better entitlements. For example, you may have longer rest breaks or more than 5.6 paid holidays per year. A maximum working week of 48 hours. A 20 minute break after 6 hours work (over 18). 24 hour rest period after working 7 days (Young workers aged entitled to 48 hours). An average of 8 hours work should be carried out on nights. Free health assessment for night workers.

8 National Minimum Wage The National Minimum Wage for workers between the ages of 16 to 17 is 3.68, 18 to 20 is 4.98 and workers aged 21 and over the rate is 6.19, (correct from 1 October 2012 and at time of printing). These rates are reviewed periodically by the Government and are subject to change. Aged = 3.68 Aged = and over = 6.19 Most employment law web sites such as ACAS provide the current rate.

9 Statutory Periods of Notice If your employment is terminated then you are entitled to a period of paid notice. The Statutory period of notice that you are entitled to is summarised below. Your contract of employment may say that you are entitled to a longer period of notice. You are not entitled to notice if your employment is for gross misconduct. You are entitled to notice if you are off sick or on maternity leave. Notice is based on complete year s service and is: Service Notice 1 Month to 2 Years 1 Week 2-3 Years 2 Weeks 3-4 Years 3 Weeks 4-5 Years 4 Weeks 5-6 Years 5 Weeks 6-7 Years 6 Weeks 7-8 Years 7 Weeks 8-9 Years 8 Weeks 9-10 Years 9 Weeks Years 10 Weeks Years 11 Weeks 12 Years and Longer 12 Weeks

10 Frequently asked questions Can my employer force me to choose between redundancy and relocation? Some employees will have a relocation clause within their contracts of employment, such a clause will usually make a degree of relocation reasonable for an employee. If there is no relocation clause within a contract an employee maybe placed at risk of redundancy. An employee on maternity leave may reasonably be offered suitable alternative roles of employment before by an employer before colleagues who are not on maternity leave, if an employer fails to offer a suitable alternative to an employee on maternity leave, the employee could present a claim for unfair dismissal at the Employment Tribunal. If an employee refuses an alternative job role due to relocation they may not be entitled to redundancy pay. An Employment Tribunal would decide if an employees rejection of relocation is reasonable in the wider circumstances. It is for the discretion of the Tribunal, similarly if an employee is asked to relocate many miles from their home and they have a family for example an Employment Tribunal may deem refusal to relocate as reasonable. If I m made redundant while on maternity leave do I have any special rights? Yes. If an employee is made redundant because she is on maternity leave she will automatically be deemed to have been unfairly dismissed. If an employer can evidence that they have a genuine need to make redundancies then they could make an employee redundant whilst they are on maternity leave.

11 What is unfair dismissal? Unfair dismissal is where an employee claims that his or her employer s decision to terminate their employment was unfair. Unfair reasons for dismissal could include; an unfair process being followed, no reasonable reason for dismissal or the reason for dismissing fell in to one of the categories which is known as automatically unfair. In most cases Employment Tribunals are required to consider the reason advanced to justify dismissal and to decide whether in all of the circumstances the employer acted reasonably. What are fair grounds for dismissal? Legally there are five potentially fair reasons for dismissal; conduct, capability, redundancy, a legal reason which means employment cannot continue for some other substantial reason to justify a dismissal. An employer is under an obligation to prove that the reason for making a dismissal was reasonable. What is automatic unfair dismissal? Automatically unfair reasons for dismissal include a failure to provide an employee with; a written statement of employment particulars, an itemised pay statement, a minimum notice period, maternity, paternity or adoption leave. Time off for antenatal care, parental leave, time off for dependants, the right to request flexible working arrangements, the right not to be discriminated against because of gender, race, disability, religion or belief, sexual orientation or age. Time off for public duties, protection against unlawful deductions from wages or making a public interest disclosure or whistle blowing. Who can claim unfair dismissal? As of April 2012 only employees who have two year s continuity of service at the date of dismissal, or those who have been dismissed without notice and are within a week of gaining two year s continuity of service are eligible to claim unfair dismissal. If an employee commenced employment prior to April 2012 and has one year s continuity of service at the date of dismissal they are then eligible to claim unfair dismissal. This does not apply if an employee is claiming automatic unfair dismissal. Additionally an individual claiming unfair dismissal must be an employee as opposed to being self employed or an agency worker. The employee must be in employment in Great Britain and they must be within the 3 month time limit for bringing a claim to the Employment Tribunal.

12 Is my employer obliged to disclose the reason for dismissal? Yes. An employee with one year or more continuous service with an employer can make a request for a written statement confirming the reason for their dismissal if they are otherwise unaware of the reasons. How do you claim unfair dismissal? To present a claim at an Employment Tribunal an ET1 claim form must be completed by the employee and sent to the relevant Employment Tribunal within the necessary time limit. What does the employment tribunal do? The Employment Tribunal will assess the facts and evidence before it in relation to an employee s claim to establish whether the decision to dismiss the employee was fair and reasonable. An Employment Tribunal can not impose its own view of what is reasonable on to an employer; it must decide whether the decision to dismiss was within the band of reasonable responses available to a reasonable employer. Are there any time limits? Yes, the Employment Tribunal has strict time limits which allow an individual to present a claim at an Employment Tribunal. For a claim of Unfair Dismissal, an employee has 3 months less 1 day from the date of his or her dismissal to present a claim at an Employment Tribunal. Other time limits include: Unlawful Deductions From wages an employee has 3 months less 1 day from the date of the last deduction to present a claim at an Employment Tribunal. Holiday Pay claims An employee has 3 months less 1 day from when the payment was due to present a claim at an Employment Tribunal. Redundancy Payment claims An employee has 6 months from the date of their dismissal to present a claim at an Employment Tribunal. Equal Pay claims An employee has 6 months from the date they leave employment (including but not limited to TUPE transfers, changes to Terms and Conditions) to present a claim at an Employment Tribunal If the tribunal rules in my favour, can I get my old job back? Yes, potentially an Employment Tribunal can order re-instatement, re-engagement or compensation to an employee. If an employee requests that they be re-instated in to their old job it is at the discretion of an Employment Tribunal as to whether they will get their old job back. The circumstances

13 which have led to the dismissal must be considered in terms of the realistic prospects of re-instatement, in certain circumstances an employee returning to a previous workplace may not be a realistic or viable option. It is very rare for a tribunal to order re-instatement (same job, same terms and conditions) or re-engagement (different job, different terms and conditions). What about compensation for unfair dismissal? If an Unfair Dismissal claim is successfully pursued at the Employment Tribunal the maximum award which can be made is 72,300. The sum is reached by calculating a Basic Award and a Compensatory Award. The Basic Award is calculated in the same manner as a statutory redundancy payment. There are two main elements in the calculation of the basic unfair dismissal award. These are the employee s length of service at the date of termination and the employee s age at the time of dismissal. For the purposes of calculation a maximum of 430 per week gross is allowed, and up to a maximum of 20 years service (maximum of 12,900). Half a week s pay for each year of employment in which the employee is under the age of 22 One week s pay for each year of employment in which the employee is below the age of 41 but not below the age of 22 One and a half week s pay for each year of employment in which the employee was not below the age of 41. A Basic Award can be reduced by an Employment Tribunal if an employee refuses an offer of reinstatement unreasonably, if an employee has contributed in some way to their dismissal or if any payments have already been made, such as enhanced redundancy payments if the dismissal was due to redundancy. A Compensatory Award is for loss of earnings which have occurred as a result of the dismissal There is no guarantee that a tribunal would award you loss of earnings. The Tribunal can award compensation here for as short, or as long, a period as they consider just and fair. There is no guarantee that a Tribunal would award you loss of earnings even if an individual were to be successful in their claim. In making a decision the Tribunal will use their experience to decide how long they think it should take/should have taken an individual to find a similar job on a similar rate of pay as the job with their former employer. In an assessment of the individuals losses much will also rest on how far the Tribunal is satisfied that they have made a reasonable search for alternative employment. In the summer of 2013 the government is planning important changes in the Tribunal system including the introduction of fees to lodge a claim and a new cap on compensation levels

14 It s your right! So if you think you are a victim of unfair dismissal or have been mistreated in any other way, consult one of our specialist solicitors. It s your right to seek compensation today.

15 Useful Contact Information For any questions please contact Stephen Pinder or Sarah Williams in our employment department using the following;

16 If you have any questions about anything in this leaflet please call us on Alternatively please EAD Solicitors LLP is a Limited Liability Partnership registered in England (registered number OC334289) and is authorised and regulated by the Solicitors Regulation Authority (487037). A list of members of the LLP is available for inspection at our registered office Prospect House, Columbus Quay, Liverpool, L3 4DB, together with a list of those non-members who are designated as partners. Any reference to a partner in relation to the LLP means a member or employee of, or consultant to, the LLP.