A GUIDE Bloomsbury Law Solicitors www.bloomsbury-law.com
Important information: All advice and explanation of the law in this document is intended for information purposes only, and is not a substitute for taking formal specific legal advice from a practising solicitor or barrister. While every care has been taken to ensure the accuracy of the contents of this document and the opinions in it, no responsibility for loss occasioned to any person or company acting or refraining from action as a result of any statement in it or otherwise caused by relying upon the contents of this document is accepted by the author or publishers. This document may not be reproduced or copied in any form without the express written consent of the publishers. Martin Phillips 2014 Contents Introduction... 4 Types of working relationships... 5 Self-employed... 5 Employed:... 5 Self-employed:... 5 Contractors to your own limited company... 6 Contractors to umbrella companies... 6 Agency workers... 6 Workers... 6 What is employment?... 6 The contract of employment... 7 Does a contract have to be made in writing?... 7 The statutory statement of terms and conditions... 7 Changes to the terms of employment... 8 Termination of employment... 9 Notice periods... 9 Wrongful dismissal... 10 Gross Misconduct... 10 Unfair dismissal... 11 Remedies for an unfair dismissal... 14 Constructive dismissal... 15 The right to be accompanied... 16 To whom does the right apply?... 16 2
Application of the statutory right... 16 What is a disciplinary hearing?... 16 What is a grievance hearing?... 17 What is a reasonable request?... 17 The accompanying person... 18 What can a companion at a hearing do?... 18 Employment Tribunals... 19 DISCRIMINATION... 27 Protected characteristics... 28 Age... 28 Disability... 28 Race... 28 Sex... 28 Sexual orientation... 28 Gender reassignment... 28 Marriage and civil partnership... 28 Pregnancy and maternity... 28 Religion or belief... 28 Prohibited Conduct... 28 Direct discrimination... 29 Associative discrimination... 29 Perceptive discrimination... 29 Indirect discrimination... 29 Discrimination arising from disability... 29 Harassment... 30 Victimisation... 30 Failure to make adjustments for disabled people... 30 What is a disability?... 30 People with HIV infection, cancer and Multiple Sclerosis... 31 People deemed to be disabled... 31 3
Exclusions from the definition... 31 A summary of an employee s statutory rights... 32 Written statement of employment terms and conditions... 32 Itemised pay statement... 32 Notice of termination... 32 Written reasons for dismissal... 32 Time off for public duties... 32 Unfair dismissal... 33 Statutory sick pay... 33 Maternity rights... 33 Paternity rights... 34 Transfer of a business or undertakings (TUPE)... 34 Shop working on Sundays... 34 Redundancy pay... 34 Discrimination... 34 Disability... 35 Working hours and annual leave... 35 The National Minimum Wage... 35 Guarantee payments... 35 Parental leave and time off for dependants... 35 Flexible working... 35 Right to be accompanied at certain hearings... 36 Right to request time off from work to undertake study or training... 36 Whistle-blowers... 37 Data protection... 37 Health & Safety... 37 Statutory rights... 38 Introduction This is a brief summary of some of the basic rights that the law gives to people at work in the UK. As such, while the law is stated as accurately as possible, this is only an introductory summary and is 4
not published as formal legal advice or to be relied upon in taking any kind of action. It is simply intended to give the reader a basic idea of what their rights could be. If you have problems at work or believe that your rights have been infringed than you may need the services of a Solicitor. The author of this guide, Martin Phillips is a solicitor with over 30 years experience and can be contacted for an appointment at BloomsburyLaw Solicitors at 17 Manchester Street London W1U 4 DJ telephone 0207 998 7777 or email him on martin.phillips@bloomsburylaw.com. You can obtain an opinion from Martin or one of his team about whether or not you may have a case worth making an appointment to discuss with one of our team of solicitors. See www.bloomsbury-law.com/people/martin-phillips/ Types of working relationships People can work in relationships that give rise to different types of legal rights. The most common types of working situation are set out below. Self-employed You work for yourself in your own business and submit your personal accounts to the taxman. Usually you will advertise and carry out work for many different clients who engage your services but do not control how you carry out your work. In determining whether a person is self-employed the Inland Revenue suggest the following indicators: Employed: If you answer yes to the following you are usually employed: Do you have to do the work yourself? Can someone tell you what to do and when or how to do it? Are you paid by the hour, week or month? Do you get overtime pay? Do you work set hours? Do you work at someone else s premises or where he or she decides you should work? Self-employed: If you answer yes to the following you are usually self-employed: Do you have the final say in how the business is run? Do you risk your own money in the business? Are you responsible for meeting losses as well as taking profits? Do you provide the main equipment for doing your job? Can you hire other people to do work you have taken on? Do you have to correct work that is unsatisfactory in your own time and at your expense? 5
Contractors to your own limited company Some people work on contracts to supply their services via a limited company. This can have benefits in terms of tax and payment terms although the taxman has tried to shut the door by a rule called IR35 which says that if other than for the existence of your limited company you would be employed by the business the work is done for you will be taxed as an employee. Contractors to umbrella companies In a similar way some people supply their labour via agencies and their pay is channelled through a business called an umbrella company that deducts their tax and NI and pays them. This has tax advantages in that some agencies pay a higher rate to contractors and using an umbrella company can give tax advantages in terms of reclaiming expenses against tax. Some umbrella companies purport to enter into self-employed contracts with their clients. Agency workers People who supply their labour through an employment agency (either as a temp or on contract) are usually not employed by the business where they work. The agency is paid by their client and it pays the agency worker (and deducts their tax and NI) or pays the gross pay to their umbrella company which calculates their tax. However because the agency cannot control the work in the place that the worker does it usually it is not capable of being treated in law as the employer. The business where the person does the work does not employ them because its only contract is with the agency. For this reason most agency workers are not technically employed by anyone but agencies still have to deal with your tax and NI by PAYE for anyone where it pays them unless they contract with the agency with an umbrella company or are registered as self-employed. Workers By law a worker is defined as anyone who personally undertakes to do work for another under a contract, whether written, oral, implied, or express, but not where the work is part of a profession or business undertaking carried on by the worker. What is employment? Most people who go to work are employed by someone else. The essential characteristics of employment are that there is: A contract of service. The nature of such a contract is that the employer controls the employee. Usually the employer will control how, when and where the work is done. In a typical employment this means that the work is done on the employer s premises using the employer s tools and materials. There must be a mutual obligation between employer and employee (for example: the employee is obliged to do the work he is provided with; and the employer is obliged to pay him for it). The obligation is a personal one and the employee is personally obliged to do the work himself as opposed to getting someone else to do it. If the person who is agreeing to do 6
work has the right to send someone else to do the work they are not employed to do the work under a contract of employment. Both parties have the intention to create a legally binding employment relationship. The contract of employment Everyone who is an employee works under the terms of a contract of employment. It may be a formal written document, or it may be simply a spoken oral agreement; a contract can also be implied from the existence of certain facts. Where there is a contract of employment the law implies basic terms into it: An employee has a duty: To act in the employers best interests; Not to compete with the employer s business while employed; Not to use trade secrets /confidential information; To carry out lawful instructions with due care and honesty. An employer has a duty: To maintain a relationship of trust and confidence with his employees; To take reasonable care for an employee s health and safety; To provide an employee with reasonable and prompt means to redress any grievance he or she may have; To provide employees with a working environment suitable for the performance of their contractual duties. Does a contract have to be made in writing? The actual agreement that forms the contract does not have to be made in writing. The statutory statement of terms and conditions However, what is required by Section 1 Employment Rights Act 1996 is that a summary of the most important terms be given to the employee within two months of the contract commencing (unless the contract did not last for a month or the employee is excluded from Section 1, mainly seamen and employees who work outside Great Britain). The written summary, which the law does require, MUST include terms covering the matters below: The identity of the employee; The title of the employee s job and brief description of his or her work; The place where the employee is to work; The date the employment began; The dates any continuous employment began; The rate of pay and intervals when payment takes place; 7
The hours of work; Entitlement to holidays including public holidays and holiday pay; What happens if the employee is sick or injured or otherwise incapable of work and whether he will receive sick pay and if so on what terms; Details of the Pension Scheme and whether or not there is in force a contracting out certificate for the employment; Notice to be given and received; If employment is temporary, the expected period of employment; The termination date if employment is for a fixed term; Any collective agreements applicable to the employment; Whether the employee is expected to work outside the UK for more than 1 month and if so length of period, currency of pay, benefits and terms relating to return to UK; Specify any procedure applicable to the taking of disciplinary decisions relating to the employee or to a decision to dismiss the employee or referring the employee to the provisions of a document specifying such a procedure which is reasonably accessible to the employee; Specify a person (either the name of the person or their job title/position) to whom the employee can apply if unhappy with any disciplinary action or dismissal decision taken against him or her; Specify a person (either the name of the person or their job title/position) to whom the employee can apply to seek redress of any grievance relating to his employment. The statement must accurately represent the terms as they were seven days prior to the date of the statement. A written contract of employment should state that it complies with the legal obligation to issue a summary to the employee as well as clearly defining all the terms of the relationship. A contract is a two-way transaction. Both parties to the transaction have to agree. If they fail to agree about a particular aspect of their relationship at the outset any later disagreement can only be resolved in a way that is agreed by both the employer and employee and effectively amends their original agreement (or effectively a failure to agree means that their contract may be terminated). For example if an employer takes on an employee but there is no defined basis upon which the employee is to take his holidays the employer is not in a position to dictate what should happen and will have to negotiate and agree a solution with the employee. In some cases disputes can lead to the matter being heard by a court or Employment Tribunal who will usually imply terms or interpret what has happened in the past to determine the matter in favour of the employee. An employee who is not issued with a written statement of terms and conditions can apply to an Employment Tribunal and get an order that the employer provide the missing details and the Tribunal must also award compensation of between two and four week s pay to the employee. Changes to the terms of employment Any change to the terms upon which a person is employed must be given to him or her in a written statement at the earliest opportunity or in any event within one month of the change. 8
However a contract of employment is an agreement so neither party has the right to change the terms of the contract without the agreement of the other. Thus if an employer makes a substantial change to the terms of the contract of employment without the agreement of the employee what is the effect of the change? 1. If the employee does not agree to the change and chooses to treat the existing agreement as brought to an end by the change there has been a dismissal that may give the employee a remedy for unfair dismissal, wrongful dismissal or breach of contract. This may be a constructive dismissal where the employee chooses to resign because of his employer s fundamental breach of contract or it may be an express dismissal if the employer terminates the old contract and issues a new one (effectively re-employing the employee on the new terms). 2. If the employee accepts the change whether he would have agreed to it or not and elects to continue working he may be deemed to have accepted the change and agreed to the new term. Some unilateral changes to a contract may not be sufficient to amount to a dismissal where they do not substantially change the terms upon which the employee is employed. For example a change in the identity of the employer due to the renaming of the company or change of ownership, change of address or a change in the documentary format of the contract. Many contracts of employment give an employer the express right to change the contract without the further agreement of the employee. Such clauses will be effective only to the extent that an employer cannot make substantial changes to contracts that are to the detriment of the employee. Such action would be a breach of the implied term of mutual good faith and trust and would entitle the employee to treat the contract as brought to an end by the employer s breach of contract. Termination of employment Unless an employee is contracted to work for only a specific fixed period of time or his contract provides other circumstances that automatically end it, his employment can usually only be terminated by either party giving a period of notice. Notice periods The contract can set out how much notice either party needs to give but the employer must give the employee at least the statutory minimum period of notice which is one week, until there have been two completed years of continuous employment, after which it is one week for every completed year of employment up to a maximum of 12 weeks notice. This rule applies to employees who have been employed for more than a month. An employee only has to give a week s notice, after a month of employment, irrespective of how long he has been employed unless there is an express contractual term that he gives a different notice period. There is an implied term that both employer and employee must give each other reasonable notice and the circumstances of a particular business may require greater notice than the statutory minimum. If the contract expressly provides for a notice period that is not less than the statutory minimum then it will be binding. 9
Wrongful dismissal An employer who dismisses someone without contractual or statutory notice will be in breach of contract and liable to pay compensation. This is called wrongful dismissal and usually the employer s liability will be limited to payment of salary in lieu of the notice that should have been given to the employee. The issue is simply whether notice was given and has nothing to do with the fairness of the decision to dismiss. Only in extreme cases does the law permit summary dismissal without notice. Usually there must be gross misconduct on the part of the employee. Gross Misconduct Gross Misconduct is not specifically defined but the courts have established categories of offence that are potentially so serious as to justify summary dismissal without notice. What is required is behaviour that is such as to show the servant to have disregarded the essential conditions of the contract of service. Examples of Gross Misconduct: Theft or other deliberate dishonesty. Even if the amount involved is small, deliberate theft or dishonesty will usually justify summary dismissal. Violence towards fellow employees or management will usually amount to gross misconduct and lead to dismissal but a careful investigation is essential. Deliberate damage to employers property will, like dishonesty, justify summary dismissal. Drinking alcohol and drunkenness at work could also amount to gross misconduct although again the circumstances should be carefully considered. For example if the employer does not have a rule against such conduct or the drinking occurs at a work-related social function or a business lunch then clearly that context would suggest that a finding of gross misconduct is not justified. Where a worker drives for a living or operates machinery then health and safety standards would ensure that a strict rule against such conduct was applied. Insubordination and offensive language will in a serious case amount to gross misconduct. However employers should remember that certain words when set out in a statement or read in court room may sound appalling and inappropriate, but the nature of the work place and the type of language commonly used, for example, in a male-dominated shop floor situation, may be very different to the mode of language used in an office. Robust language and macho behaviour, when taken in context, may not amount to gross misconduct. It is important to distinguish between incidents of robust male banter that gets a little out of hand and a serious incident of insubordination. Unauthorised use of a computer or tampering with a computer without authority has been held to be gross misconduct justifying summary dismissal. Accessing pornography while at work has been held to be conduct that a reasonable employer may find to be gross misconduct justifying instant dismissal. 10
A serious breach of trust and loyalty could be gross misconduct. For example an employee who sets up a business in competition to his employer, approaching clients and seeking to undercut his employer s prices as well as encouraging other staff to leave was fairly dismissed for gross misconduct but an employee who was merely taking steps to prepare to set up his own competing business (with a view to competing only after he had left his employment) was unfairly dismissed. Working for and assisting a competitor was gross misconduct but merely seeking employment with a competitor was not. Gross negligence and incompetence may amount to gross misconduct and justify summary dismissal. Some employers fall in to the trap of treating poor performance or capability in the same way as misconduct and this can lead to unfair dismissals. What could however amount to gross misconduct is an act of gross negligence or incompetence that is so serious that there is no question of the employee being warned or given the chance to improve. Unfair dismissal The law protects UK employees from unfair dismissal. This is entirely separate from wrongful dismissal. It is a basic right given to employees by the law since 1971. Employers cannot dismiss any employee who is protected from unfair dismissal unless they have a potentially fair reason for the dismissal and they make a decision which is fair in all the circumstances. There are some reasons for dismissal that are automatically unfair in all cases however long the employee has worked for their employer. In most cases an employee must work for an employer for two years before they become protected from unfair dismissal 1. An employee who believes that he has been unfairly dismissed can bring a claim before an Employment Tribunal (see section on Employment Tribunals below). There is no qualifying period for protection from unfair dismissal in the following cases: 1. Dismissal for a certain trade union related reason; 2. Dismissal for asserting a statutory right (e.g. objection to illegal deduction from wages or insisting on any of his statutory rights under the Employment Rights Act 1996); 3. Dismissal for a health and safety related reason (e.g. refusing to operate dangerous machinery); 4. Dismissal for a maternity related reason (e.g. sacked when she tells employer she is pregnant); 5. Dismissal in connection with function as a pension scheme trustee; 6. Dismissal in connection with performing a function as an employee representative or a special negotiating body or European Works Council etc; 7. Dismissal in connection with refusal of Sunday work by a shop worker; 8. Dismissal in connection with working time (e.g. someone who asks to be allowed to take annual leave or breaks or refuses to opt out of the 48 hour week); 9. Dismissal in connection with assertion of right to the National Minimum Wage; 10. Dismissal in connection with making a protected disclosure (whistle blowing); 11. Dismissal in connection with trade union recognition or bargaining arrangements; 1 (or for 12 months, if their period of continuous employment began before April 5th 2012) 11
12. Dismissal in connection with exercising the right to be accompanied to a disciplinary or grievance hearing; 13. Dismissal in connection with taking part in protected industrial action (official strikes for example); 14. Dismissal because of taking time off for dependants or paternity or parental leave; 15. Dismissal because of action related to part time worker s rights; 16. Dismissal in connection with someone s rights as a fixed term employee; 17. Selection for dismissal by way of redundancy because of an automatically unfair reason; 18. Dismissal in connection with Tax Credits or a claim for the same; 19. Dismissal for being absent on jury service or because the employee has been summoned for jury service. 20. Dismissal for asserting a right to flexible working. 21. Dismissal for asserting a right to study and training. 22. Dismissal because of a TUPE transfer or a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes in the workforce. 23. Dismissal because of a spent conviction. 24. Dismissal for exercising rights under the Agency Workers Regulations 2010. All of the above are automatically unfair dismissals. In most of these cases an employee does not need to have a period of qualifying continuous employment EXCEPT in the following: Dismissal in connection with a TUPE transfer; Dismissal because of a spent conviction; Dismissal in connection with an application for flexible working. (but they will give rise to an automatic finding of unfair dismissal if they are shown to be the reason for dismissal of someone qualified to claim). The effect of a reason being an automatic unfair dismissal is that if the employee establishes to the Tribunal that he was dismissed for such a reason the employer cannot then establish that the dismissal was fair. Dismissal in discrimination cases. Dismissal for a reason that amounts to sex or race or disability discrimination or in connection with a complaint of such discrimination will almost certainly be unfair in every case and where the employee is qualified to claim unfair dismissal he will succeed under both the head of discrimination and unfair dismissal. However, if the employee has not qualified for protection from unfair dismissal he will still be able to make a Tribunal claim that his dismissal itself was an act of discrimination and seek compensation as in an unfair dismissal but compensation will be unlimited and can include injury for feelings. Other dismissals. For the employer to be able to prove that it was fair the reason for a dismissal that is not automatically unfair, must be one of the potentially fair reasons, which are: 12
Related to the capability or qualifications of the employee; Related to the conduct of the employee; Redundancy; Where continued employment would involve the employee or the employer contravening a duty or restriction imposed by law; Some other substantial reason. Once it is established that the reason the dismissal was a potentially fair one, the employer s decision to dismiss must satisfy a test of fairness. If the employer has not followed a fair procedure the decision to dismiss will be unfair even if there is otherwise a good reason for the dismissal and the employer s error is purely procedural. Assuming that the employer has carried out an investigation, consulted where necessary and held a fair hearing where necessary, it is then for the Tribunal to address the issue of whether the employer was reasonable to respond to the situation by dismissing the employee. The job of a Tribunal is not to substitute its own view for that of the employer but to decide whether the employer s response was a reasonable one, judging it by an objective standard of fairness. However a Tribunal is obliged to take into account whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and it is the law that the issue be determined in accordance with equity and the substantial merits of the case. The essence of unfair dismissal is that the employer must prove that: The principle reason for the dismissal was potentially fair; They genuinely believed that they had a good and fair reason for dismissal; They reasonably followed a fair procedure; That their decision to dismiss was a reasonable response in all the circumstances. Factors which affect the reasonableness of an employers action include: The length of time during which the employee has been employed by them; The satisfactoriness or otherwise of the employee s service; The difficulties which may face the employee in obtaining other employment; Treatment of other employees in similar circumstances; The investigation carried out; The hearing in a disciplinary matter; The size of the employer s undertaking. The Tribunal must always take into account the ACAS Code of Practice on Disciplinary and Grievance Procedures. Any employer or employee who unreasonably fails to follow the Code of Practice risks a Tribunal award of compensation that is subsequently made being increased or reduced by up to 25% and failure to follow it makes it very likely that a dismissal will be ruled to be unfair where if the employer had followed a fair procedure a dismissal for the same reason might have been found to be fair. 13
The ACAS Code of Practice does NOT apply to redundancy dismissals or failure to renew a fixed term contract. However the Tribunals will still be able to rule on the fairness of such dismissals as they have in the past. Remedies for an unfair dismissal Compensation consists of a basic award, which is related to statutory redundancy payments, plus a compensatory award. The maximum amount for compensatory awards is index linked but in unfair dismissal cases the employee will usually not be able to recover more than one year s pay. But there is no limit to the compensatory award where: The employer refuses to reinstate or re-engage the employee; Where the dismissal is for trade union or health and safety reasons; Where the dismissal is for protected disclosure reasons or; Where the dismissal is redundancy and the selection is made on health and safety or protected disclosure grounds; In discrimination cases. An Employment Tribunal that has made a finding of unfair dismissal also has a duty to consider whether to make an order that the employer re-engage or reinstate the employee. The compensatory award is made to compensate an unfairly dismissed employee for loss sustained in consequence of the dismissal so far as that loss is attributable to action taken by the employer. The amount is such amount as the Tribunal considers just and equitable in all the circumstances and includes any expenses reasonably incurred by the complainant and loss of any benefit that he might reasonably have expected to have had but for the dismissal. A complainant must mitigate his loss in the same way as the common law expects any claimant to do. He cannot simply wait for the Tribunal hearing and make no effort to get work although it has to be remembered that dismissed employees particularly those with long service often have no references from the employer who dismissed them and thus can justify their failure to secure employment. The award of compensation can be reduced by such amount as the Tribunal finds just and equitable where it is found that the complainant s conduct to any extent caused or contributed to the dismissal. However compensation for unfair dismissal is limited to financial losses only and, unlike in discrimination cases, no award can be made to compensate for injured feelings or distress caused by the manner of dismissal. The question of what has to be deducted from an award of compensation is a vexed one. The Employment Appeal Tribunal recently ruled that Incapacity Benefit must be deducted. Yet another decision by the EAT held that earnings during a notice period for which the employee had been paid by his employer by a payment in lieu of notice did not have to be taken into account. Payments by an employer contractually or ex-gratia will be deducted. 14
Where an employee is unable to work after dismissal he may be awarded compensation for that period when the Tribunal finds that the cause of his incapacity is his dismissal, e.g. where the employee is psychologically affected by being dismissed. Just because someone is unable to work when dismissed does not mean they cannot recover future earnings based on an assessment of when they are likely to be fit to work and their prospects of getting another job and what they are likely to earn. Tribunal awards are subject to direct recoupment of certain state benefits. Constructive dismissal If an employee resigns (without notice) in circumstances where he is entitled to treat the contract as brought to an end by a fundamental breach of contract on the part of the employer there will be a dismissal (and it will almost certainly be unfair). An example of this kind of constructive dismissal is where the trust and confidence between employer and employee is destroyed. Abusive or discriminatory behaviour by an employer towards an employee, a serious unilateral variation of contractual terms by the employer or conduct intended to provoke the employee s resignation may well cause a constructive dismissal. As a rule for there to be a successful claim of constructive dismissal the employee must inform the employer that the real reason for his resignation is the fact that he regards the employer to have repudiated the contract by what he has done or threatened to do. Usually the reason should be stated at the time of the resignation but this is not essential. The employee must establish that the employer was in breach of an express or implied term of the contract, that the breach was fundamental to the contract and that he resigned because of it. An employee who remains in his job after the alleged breach of contract may be said to have affirmed the breach and lose the right to treat the contract as brought to an end by the employer. A short while spent trying to decide what to do and or looking for another job may be allowed. As a rule any delay between the breach and resignation of more than a month will mean the employee has lost the right to resign. Examples of constructive dismissal are employees who have resigned because of their employer s use of bad language or threatening behaviour. In another case an employee who was on maternity leave discovered that her old job would be fundamentally changed when she went back so she resigned rather than go back and was found to have been constructively dismissed. An employer who threatened to give notice of dismissal to an employee unless he accepted changes in his contract terms was found to have constructively dismissed him. An employee who joined a van hire company as a receptionist resigned after three days because she was offended by her employers unlawful instructions to refuse to hire vehicles to black people. She was found to have been constructively dismissed. However in one case an employee who resigned after his boss allegedly promised him a substantial salary increase at the company Christmas party and failed to deliver on his promise was NOT constructively dismissed. The court said that what the boss was alleged to have promised was just a gratuitous promise that was not intended to be legally binding so there was no breach of contract. 15
Whether there is a constructive dismissal or not will depend on the employee showing that the conduct of or on behalf of the employer broke a fundamental term of the contract so as to show that the employer was no longer bound by the contract. This is an objective test. The implied term of trust and confidence was established by the decision in the 1997 case of Malik v BCCI. This held that...the employer shall not without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee...". It has since been suggested that this means a manner calculated and/or likely to destroy or seriously damage. While the breach of the implied term is something to be judged objectively it has been suggested that to amount to conduct that is a breach the conduct of the employer will be outside the range of reasonable responses. However genuinely held, the employee s belief that his trust in his employer has been destroyed only if the employer s actions amount to something outside the range of reasonable responses which judged objectively are calculated or likely to destroy that trust will there be a breach of contract entitling the employee to resign. If there is a constructive dismissal it will usually be a wrongful dismissal because necessarily the employee does not give notice. In almost all cases, if the employee can establish a repudiatory breach by his employer then the dismissal will be unfair and wrongful. The right to be accompanied Workers have a statutory right to be accompanied by a fellow worker or trade union official where they are required or invited by their employer to attend certain disciplinary or grievance hearings and when they make a reasonable request to be so accompanied. The request to be accompanied need not be in writing. To whom does the right apply? The statutory right to be accompanied applies to all workers, not just employees working under a contract of employment. Worker is defined and includes anyone who performs work personally for someone else, but is not genuinely self-employed, as well as agency workers and home workers, workers in Parliament and Crown employees other than members of the armed forces. Application of the statutory right The statutory right applies where a worker:- a) is required or invited to attend a disciplinary or grievance hearing, and b) reasonably requests to be accompanied at the hearing. What is a disciplinary hearing? Whether a worker has a statutory right to be accompanied at a disciplinary hearing will depend on the nature of the hearing. Employers often choose to deal with disciplinary problems in the first instance by means of an informal interview. So long as the informal interview does not result in a formal warning or some other action it is not essential for the worker to be accompanied at this informal stage. 16
But employers should be careful not allow an investigation into the facts surrounding a disciplinary case to extend into a disciplinary hearing. If it becomes clear during the course of the informal or investigative interview that formal disciplinary action may be needed then the interview should be terminated and a formal hearing convened at which the worker should be afforded the statutory right to be accompanied. The statutory right to be accompanied applies specifically to hearings that could result in: 1) the administration of a formal warning to a worker by his employer (i.e., a warning, whether about conduct or capability, that will be placed on the worker s record); 2) the taking of some other action in respect of a worker by his employer (e.g., suspension without pay, demotion or dismissal); or 3) the confirmation of a warning issued or some other action taken. What is a grievance hearing? The statutory right to accompaniment applies only to grievance hearings that concern the performance of a duty by an employer in relation to a worker. This means a legal duty arising from statute or common law (e.g., contractual commitments). Ultimately, only the courts can decide what sort of grievances fall within the statutory definition but the individual circumstances of each case will always be relevant. For instance:- 1) An individual s request for a pay rise is unlikely to fall within the definition unless specifically provided for in the contract. On the other hand a grievance about equal pay would be included as this is covered by a statutory duty imposed on employers. 2) Grievances about the application of a grading or promotion exercise are likely to be included if they arise out of the contract but not grievances arising out of requests for new terms and conditions of employment, for instance a request for subsidised health care or travel loans where these are not already provided for in the contract. 3) Equally an employer may be under no duty to provide car parking facilities and thus a grievance on the issue would not attract the right to be accompanied. However, if the worker was disabled and needed parking facilities in order to attend work the employer s duty of care becomes relevant and the worker is likely to have a statutory right to be accompanied. 4) Grievance arising out of day to day friction between fellow workers may not involve the breach of a legal duty unless the friction develops into incidents of bullying or harassment which would be included as they arise out of the employer s duty of care. What is a reasonable request? In order for workers to exercise their statutory right to be accompanied they must make a reasonable request to their employer to exercise that right. Workers are therefore free to choose any one who is within the qualified group of a fellow worker or trade union official. The choice of person to accompany them is not thought to be subject to a test of reasonableness only the request itself. So, an employer who refused an employee s request to be accompanied by a named union official with whom they had a previous disagreement was held to be acting unlawfully even though 17
they had permitted a different union official to do so at the hearing. The employee won a claim that the employer had failed to allow him his right to be accompanied. The accompanying person A worker has a statutory right to be accompanied at a disciplinary or grievance hearing by a single companion who is either: a) a fellow worker, i.e., another of the employer s workers; or b) a full-time official employed by a trade union or a lay trade union official, so long as they have been reasonably certified in writing by their union as having experience of, or as having received training in, acting as a worker s companion at disciplinary or grievance hearings. Such certification may take the form of a card or letter. Workers may, however, have been given contractual rights to be accompanied by persons other than those listed above, for instance a partner, spouse or legal representative. Otherwise an employer does not have to allow a request to be accompanied by such a person but can choose to do so only if they wish. Workers are free to choose an official from any trade union to accompany them at a disciplinary or grievance hearing regardless of whether the union is recognised by the employer or not. However where a trade union is recognised in a workplace it is good practice for an official from that particular union to accompany the worker at a hearing. There is no duty on a fellow worker or trade union official to accept a request to accompany a worker and no pressure should be brought to bear on a person if they do not wish to act as a companion. A worker who has been requested to accompany a colleague employed by the same employer and has agreed to do so is entitled to take a reasonable amount of paid time off to fulfil this responsibility. The time off should not only cover the hearing but should also allow a reasonable amount of time off for the accompanying person to familiarise themselves with the case and confer with the worker before and after the hearing. A lay trade union official is permitted to take a reasonable amount of paid time off to accompany a worker at a hearing so long as the worker is employed by the same employer. What can a companion at a hearing do? The law now states that an employer must permit the companion to address the hearing in order to put the worker s case, sum up that case, and respond on the worker s behalf to any view expressed at the hearing. The worker and companion must be allowed to confer during the hearing. However the companion is still not allowed to answer questions on the worker s behalf. If the worker indicates that he does not want the companion to address the hearing the employer is not obliged to permit him to do so. Furthermore the companion must not use the powers conferred upon him in a way that prevents the employer from explaining his case or prevents any other person at the hearing from making his contribution to it. 18
It is now clear that a union representative can act as an advocate on the worker s behalf at a disciplinary hearing in much the same way as an advocate in a court hearing. Employment Tribunals Employment Tribunals (which were originally known as Industrial Tribunals) are a system of courts that have authority to deal with a number of different types of claims and disputes on matters arising between an employer and his workforce. They are part of the court system like the County Court, Magistrates Courts, High Court and Crown Courts that hear civil and criminal cases. Tribunals are a different tier of the judicial system and are operated as a part of the Ministry of Justice by HM Courts & Tribunals Service. Most claims have to be brought within three months of the conduct complained of or in unfair dismissals the effective date of termination of his contract or the last day of working. A claim for a redundancy payment must be brought within six months of the relevant date. Claims presented out of time may still proceed if the applicant can persuade the Tribunal to extend the time for presentation. The applicant must satisfy the Tribunal that it was not reasonably practicable to present the complaint within the initial time prescribed and that it was reasonable to do so in the time within which the complaint was actually presented. This clause applies to unfair dismissal claims. In sex and race discrimination claims the Tribunal has the power to allow a claim which is out of time where it considers that it is just and equitable to do so. A claim has to be made in writing. Claims must be submitted using the prescribed ET1 form. The ET1 form MUST BE USED. It is obtained from the offices of the Tribunal service or can be downloaded from their website (https://www.gov.uk/government/publications/employment-tribunal-claimform) and printed and sent by post or it can be submitted online (see: https://www.gov.uk/applyemployment-tribunal). In England and Wales claims should be sent to the Employment Tribunal Central Office (England and Wales) PO Box 10218 Leicester LE1 8EG In Scotland all claims should be sent to the Fees. Employment Tribunals Central Office (Scotland) PO Box 27105 Glasgow G2 9J It is now a requirement that before a claim can be accepted a fee must be paid. You can pay by debit or credit card if you apply online. You can pay by cheque or postal order (made out to HM Courts and Tribunals Service ) if you send your claim by post. Type of claim Application fee Hearing fee 19
Unpaid wages 160 250 Redundancy pay 160 250 Breach of contract 160 250 Unfair dismissal 250 950 Equal pay 160 250 Discrimination 250 950 Whistleblowing 250 950 The fee you have to pay will be for the highest level of claim you are making where for example you make an equal pay claim and a discrimination claim in the same form the fee is 250. However someone on benefits or a low income can apply for remission from the fees. If you win your case usually the Tribunal will make an order that the fee will be paid back to you by the other party. ACAS The Advisory, Conciliation and Arbitration Service ( ACAS ) is a Government body established under the Employment Protection Act 1975 to promote the improvement of industrial relations in particular by the settlement of trade disputes. In relation to most matters that can come before Employment Tribunals ACAS may conciliate. In all claims presented since 6 th May 2014 all claimants must have provided certain information to ACAS and a certificate must be issued to them as to whether or not settlement is possible before the claimant s case can presented to a Tribunal. The limitation period which applies to Employment Tribunal claims is extended by up to one calendar month (with one extension allowed of up to 14 days if the conciliation officer considers that there is a reasonable prospect of achieving a settlement before the expiry of the extended period and has the consent of both parties) to allow for the early conciliation process to take place. What happens after the claim is presented? The Tribunal send a copy of an accepted claim to the other party named in the claim who then has to file a response to the claim. When received a copy is sent out to the claimant. As soon as possible after the acceptance of the response, the Employment Judge shall consider all of the documents held by the Tribunal in relation to the claim, to confirm whether there are arguable complaints and defences within the jurisdiction of the Tribunal (and for that purpose the Judge may order a party to provide further information). The Judge conducting the initial consideration shall make a case management order (unless made already), which may deal with the listing of a preliminary or final hearing, and may propose judicial mediation or other forms of dispute resolution. 20
Employment Tribunal Hearings There are two types of Tribunal hearing: 1. Preliminary Hearing. 2. Final Hearing. A Preliminary Hearing A Preliminary Hearing is a hearing at which the Tribunal may do one or more of the following (a) conduct a preliminary consideration of the claim with the parties and make a case management order (including an order relating to the conduct of the final hearing); (b) determine any preliminary issue; (c) consider whether a claim or response, or any part, should be struck out under rule 37; (d) make a deposit order under rule 39; (e) explore the possibility of settlement or alternative dispute resolution (including judicial mediation). There may be more than one preliminary hearing in any case. Preliminary issue means, as regards any complaint, any substantive issue which may determine liability (for example, an issue as to jurisdiction or as to whether an employee was dismissed). A Final Hearing A final hearing is a hearing at which the Tribunal determines the claim or such parts as remain outstanding following the initial consideration (under rule 26) or any preliminary hearing. There may be different final hearings for different issues (for example, liability, remedy or costs). Interim issues and Tribunal orders The Tribunal may at any stage of the proceedings, on its own initiative or on application, make a case management order. Similarly either party can apply to the Tribunal for orders to be made. The Tribunal may order (1) any person in Great Britain to disclose documents or information to a party (by providing copies or otherwise) or to allow a party to inspect such material as might be ordered by a county court or, in Scotland, by a sheriff. (2) any person in Great Britain to attend a hearing to give evidence, produce documents, or produce information. (3) add any person as a party, by way of substitution or otherwise, if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings; and may remove any party apparently wrongly included. 21