TOP 10 EMPLOYMENT CLAIMS. We have set out below the Top 10 most common employment claims brought in the Employment Tribunals.

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1 TOP 10 EMPLOYMENT CLAIMS We have set out below the Top 10 most common employment claims brought in the Employment Tribunals. 1. Unfair Dismissal Claims All employees with two years or more service are protected from being unfairly dismissed. In certain cases, such as where the dismissal is related to whistleblowing or pregnancy (for example), the employee needs no minimum service. An unfair dismissal will normally arise where an employer has no potentially fair reason for dismissal, or has followed an unfair procedure in implementing the dismissal, or where the reason relied upon does not permit dismissal on the facts of the case. Employers will normally be tested on whether they acted reasonably in dismissing the employee. The potentially fair reasons for dismissal are performance/ capability; conduct; redundancy; illegality or some other substantial reason. For conduct and performance dismissals, the employer must also follow the ACAS Code on Disciplinary and Grievance Procedures. An employee who is found to have been unfairly dismissed, has the following potential remedies against the employer: compensation; reinstatement (the employee is re-employed in the job they held prior to dismissal); or re-engagement (the employee is re-employed in a similar job to their previous position). 2. Constructive Unfair Dismissal Claims To claim that they have been constructively dismissed, an employee must show that their employer has committed a fundamental (referred to as "repudiatory") breach of their contract of employment. The employee must then accept the breach and resign without delay in response to that breach. Constructive dismissal claims can arise where the employer changes the express terms of the contract of employment, for example by reducing the employee's pay or benefits, changing the hours of work, changing the nature of the work or responsibilities, changing the place of work or imposing unjust disciplinary sanctions. In addition, claims for constructive dismissal are often based on allegations that the employer has improperly conducted itself in such a way so as to amount to a breach of the implied term of trust and confidence between the employer and the employee. A fundamental breach may be based on the cumulative effect of a series of acts, such that the last act is the "last straw", justifying the employee's resignation. The compensation for constructive unfair dismissal is the same as for claims of unfair dismissal as above. As with unfair dismissal, an employee can normally only pursue a claim for constructive unfair dismissal if he has two years service at the time of the employment terminating.

2 3. Holiday Pay Claims All employees are entitled to 5.6 weeks paid holiday per year (normally equating to 28 days holiday for a full-time employee). This is provided for under the Working Time Regulations 1998 and is largely adhered to by employers. However, following recent European and UK decisions, a hot topic for claims is the amount paid for a day s holiday. The Working Time Regulations 1998 had been interpreted to state that a day s pay was basic pay only and did not include commission or non-guaranteed overtime. However, over the last year or so, this has been cast in doubt and it would appear that employees should be paid holiday pay based on average earnings which will include commission, non-guaranteed overtime and allowances (e.g. shift allowance, first-aid allowance). It is likely that we will see large numbers of claims for back-dated holiday pay claim from employees over the coming months, although the government are proposing to limit the maximum back-dated claim to two years. 4. Discrimination Claims Employees and job seekers are protected against discrimination which is on the grounds of their: gender; race; disability; sexual orientation; religion of beliefs; and age. The scope of employer liability is wide ranging and includes both their own acts and those of their employees in the course of their employment. Discrimination can take many legal forms: Direct Discrimination occurs when a person makes assumptions or judgements about another person based on a protected characteristic e.g. their gender, and on such grounds treats that person less favourably than others. Indirect Discrimination occurs when an employer applies a policy, provision or criterion which although applied neutrally and applicable equally to all workers, in fact inadvertently puts a certain group of workers at a disadvantage in comparison to other workers. Harassment occurs if, on grounds relating to a protected characteristic, a worker is subjected to unwanted conduct from his employer or a fellow employee which has either the effect or purpose of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Victimisation occurs when an employee is subjected to less favourable treatment than others because they have brought proceedings against their employer, given evidence or information in connection with proceedings brought by another person against their employer, taken any other action under or by reference to the Equality Act provisions or made any allegation against their employer or any other worker which would amount to a contravention of these provisions. A failure to make reasonable adjustments only applies to disability discrimination. The employer is under a duty to make adjustments or modifications to ensure disabled employees are not at a disadvantage to

3 other employees, an example of which would be widening a doorway or providing a ramp to enable wheelchair users to enter premises. 5. Whistleblowing Claims Employees are protected against dismissal or detriment when disclosing serious issues of misconduct by an employer (known as whistleblower protection or pubic interest disclosure protection). Whistleblowing protection applies to all workers, including agency workers. To qualify for protection, the disclosure must, in the reasonable belief of the worker making the disclosure show that one or more of the following events has happened, is happening or is likely to happen: a criminal offence; a failure to comply with any legal obligation; a miscarriage of justice; a danger to health and safety of any individual; a danger to the environment; or a deliberate concealment of any of the above. The disclosure must be in the public interest and made to an appropriate body e.g. the employer or a public authority. Whistleblowing policies may specify how a disclosure should be made, to whom, and what protection will be conferred on the person making the disclosure. It will also set out how the investigation will be undertaken. An employee who makes a protected disclosure must not be dismissed or treated to their detriment/ victimised on the grounds of having blown the whistle. This includes being treated to their detriment by other employees. Any dismissal for a reason connected with a protected disclosure, in relation to an employee will be automatically unfair, and the employee need not have the normal two years service to pursue their claim. 6. TUPE Claims TUPE is the acronym of the Transfer of Undertakings (Protection of Employment) Regulations 2006 which legally protects employees if the business in which they are employed, or the contract on which they are engaged, changes hands. The effect of which is that the employees (and any liabilities attached) transfer from the old employer to the new employer. There is a responsibility on both employers in a TUPE scenario to provide information to, and sometimes to consult with, either employee representatives (where there are 10 or more employees in the business) or the employees directly (where there are less than 10 employees in the business). Employees may be able to bring claims in a TUPE scenario if they are dismissed by reason of the transfer, are inadequately informed or consulted, or have their terms and conditions changed by reason of the transfer. This can include a claim for a protective award of up to 13 weeks gross pay. 7. Unfair Redundancy Whilst claims relating to redundancy are brought under the heading of unfair dismissal, due to the high number of potential claims for unfair redundancies we see, we thought it deserved its own category.

4 Unfair redundancy claims arise where an employer fails in its obligations to: show a genuine redundancy situation has arisen provide adequate warning of the potential redundancy select employees by applying proper objective and non-discriminatory selection criteria show and explain the reasons why an employee has been placed at risk of redundancy and allow challenges consult with the employee meaningfully to seek to avoid or mitigate the redundancy properly search for and consider alternative employment opportunities allow an unbiased appeal. 8. Family right claims Employment claims often arise through employees taking maternity leave, paternity leave, parental leave and emergency time off for dependants. In addition, all employees now have the right to request flexible working and there is a formal Code of Practice that employers must follow when dealing with flexible working requests. We continue to see claims brought by employees who are treated unfavourably or differently as a result of their pregnancy or because of taking maternity leave. 9. Non-payment of wages/ unlawful deductions from wages An employer must not fail to pay wages or make any deductions from the wages of an employee, nor receive any payment from an employee, unless: the deduction is required to be made or is authorised by statute, for example PAYE deductions the deduction or payment is authorised by a term of the employee s contract of employment the worker has consented in advance in writing his or her agreement to the deduction or payment being made Where a deduction from wages is made, or the employer fails to pay wages, other than in the circumstances above, the employee can make a claim for unlawful deduction from wages by their employer. 10. Breach of contract Breach of contract claims can arise as a result of a failure by an employer to adhere to contractual employment terms such as a failure to pay bonuses, or unilateral changes made to terms of employment. Most frequent claims under this heading result from a failure by the employer to give the appropriate notice when terminating an employee s employment. With the exception of dismissals for gross misconduct, employees are entitled to statutory minimum notice of one week s notice of termination for each full year of service, up to a maximum of 12 weeks notice. However, the contract of employment may provide for a higher amount of notice and this will override the statutory minimum. If you believe you have an employment claim and wish to discuss it with us, contact our specialist employment solicitors: Contact- [Group ] employmentclaims@smithpartnership.co.uk Call: / Meet the Team: James Johnson

5 Louise Haward Rebecca Griffiths Our employment claims service is provided through our offices in Derby, Leicester, Burton-on- Trent, Stoke-on-Trent, Swadlincote.