Employment Law FAQs

A few months ago my Company employed an individual whose standard of work is very poor. We wish to dismiss him, should we be worried he may claim unfair dismissal?

 
Generally an employee can only make a complaint of unfair dismissal to an Employment Tribunal provided that he/she has worked for that employer for at least one year.
 
However, in various circumstances employees may make a complaint of unfair dismissal regardless of their length of service, including the following:
  • dismissal for Trade Union membership activities or for non-membership of a Trade Union.
  • dismissal on maternity related grounds
  • dismissal for exercising a statutory employment protection right
  • dismissal for proposing to take certain types of action on health and safety grounds
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Regrettably, I have no option but to make one of my employees redundant, what will she be entitled to by way of a redundancy payment?

 
Under statute the amount of a redundancy payment an employer has to pay is calculated by considering the employee's age, years of service and average weekly pay to arrive at the amount. Weekly pay is limited to a maximum of, currently, £290 per week and the maximum number of years that will be considered is 20.
 
The age of the employee is taken into account as follows:
  • Years of service between the age of 18 and 22, the employees' weekly pay is multiplied by 0.5
  • Years of service between the age of 22 and 41, the employees' weekly pay is multiplied by 1
  • Years of service from age 41 onwards, the employees' weekly pay is multiplied by 1.5
Therefore, the absolute maximum "statutory" redundancy payment is currently
 
20 years @ £290 x 1.5 = £8,700
 
It is important to remember that an employee must have two years of service in order to be eligible for statutory redundancy pay.
 
If your company pays "enhanced" redundancy payments over and above statutory payments your employee may also be entitled to an enhanced redundancy payment.
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Our Company recently decided to dismiss an employee and he has commenced unfair dismissal proceedings claiming compensation from us. What compensation could our Company be required to pay our ex-employee?

 
If successful, the compensation your Company will be liable to pay him will generally comprise of 2 awards - a basic award and a compensatory award. In some circumstances, an additional award may also be made.
 
The basic award generally speaking is calculated on a similar basis to a redundancy payment (see question 2 above).
The compensatory award will take into account the following factors:
  • loss of wages from the date of dismissal until the Tribunal hearing
  • future loss of wages - the Tribunal will estimate how long the ex-employee will remain out of work
  • loss of perks, for example, health care, company car etc
  • compensation for loss of employment protection, ie the dismissed employee will have to work for a period of one year to regain protection against unfair dismissal by his new employer (see question 1)
  • compensation for loss of pension rights
  • "credit" for certain "termination" payments made by the employer to the ex-employee
  • "credit" for the ex-employee's earnings since dismissal
The maximum compensatory award is currently £58,400. This maximum is usually increased each February.
 
The additional award - if the Tribunal orders your Company to re-engage or re-instate an ex-employee and you simply
refuse, the Tribunal can then order further compensation.
 
This additional award is a minimum of 26 weeks pay and a maximum of 52 weeks pay, a week's pay being limited to a maximum, currently, of £290 per week. Accordingly, the additional award currently ranges between £7,540 and £15,080.
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Our Company dismissed an employee due to misconduct 8 months ago. Can the dismissed employee still take a claim against us for unfair dismissal?

 
Generally speaking a dismissed employee has a period of 3 months only from the date of dismissal to commence a claim for unfair dismissal.
 
The employee could attempt to obtain an extension to this 3 month limit. An extension will only be granted if an employment tribunal is satisfied that it was not reasonably practicable to commence the claim within the 3 months, for example, if the employee has been ill for a long period of time.
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What breaks and how much holiday are employees entitled to?

 
Generally speaking, employees are entitled to the following:
  • 4 weeks paid holiday every year
  • a paid break during the working day if it exceeds 6 hours
  • a rest period between leaving work and starting work again of 11 hours
  • a period of 24 hours away from work every 7 days
  • an employee should not work in excess of 48 hours per week on average unless he or she has signed valid "opt out" agreement
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How much time off are parents entitled to, if any?

 
In addition to maternity leave for mothers, generally speaking each parent is entitled to take up to 4 weeks' parental leave in any year, with a total of 13 weeks leave, per child.
  • the employee has to have been employed for at least a year
  • the parental leave must be taken by the child's 5th birthday
  • if the child has a disability the leave may be taken up until the child's 18th birthday
  • parental leave is currently unpaid
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What is the legal minimum rate of pay that can be paid to workers?

 
Most workers have the benefit of protection under the National Minimum Wage Regulations.
Currently the rates are:
  • Adult workers aged 22 and over are entitled to £5.05 per hour
  • Workers aged between 18-22 are entitled to £4.25 per hour
  • Workers below 18 are entitled to £3.00 per hour
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Can the employee and the employer simply verbally agree terms of employment or is a written employment contract necessary?

 
Employees must be given, within two months of the date of commencement of employment, a written statement setting out the main particulars of the employment.
The written statement must cover various matters including the following:
  • Names of employer and employee
  • Date when the employment began
  • The hours of work and holiday entitlement
  • Remuneration
  • Sick leave
  • Pensions and pension scheme
  • Job title or brief job description, together with details of notice
  • Place of work
  • Disciplinary and dismissal rules and procedures
  • Grievance procedures
The written statement can be a "stand alone" document. Alternatively, it can take the form of a written employment contract including the requisite particulars.
 
Although a written contract is not absolutely necessary, it is highly desirable. The employment contract can include the particulars required for the written statement, but it should go further. It should be as detailed as possible in order that both employer and employee fully understand their obligations both during employment and where appropriate, after termination (see question 9).
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Our Company is worried that our key employees may leave and work for our main competitors or disclose our trade secrets to a future employer. Is there any way we can stop them doing so?

 
This is an extremely important consideration for most businesses and a very complex area of law.
Employers can seek to restrict what employees can do, or the use of confidential information, after termination of the employment. Often clauses known as restrictive covenant clauses, whose purpose is to restrict the employee engaging in competitive activities, poaching customers or colleagues, appear in employment contracts. However, for such covenants to be valid they have to be drafted carefully so as to be reasonable in terms of duration, scope and any geographical restrictions that are imposed.
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I employ a number of workers both part time and full time doing the same job. Am I required to pay both types of workers the same rate of pay?

 
Yes, generally it is unlawful to pay a part timer at a lower rate than a full timer doing an identical job. In addition to the same rate of pay, part time workers should also receive, pro rata, other benefits that a comparable full timer enjoys, for example, holiday.
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I am in the process of buying a business but I don't get on with one of the seller's employees. After I have bought the business can I simply sack him?

 
No, there are specific obligations and liabilities upon the buyer of a business. Essentially, under the relevant regulations employees who are employed by the seller at the time of the transfer, automatically become the employees of the buyer on their current terms and conditions of employment.
 
If either the buyer or the seller dismisses an employee solely or mainly because of the transfer of the business the dismissal will be unfair.
 
If however it can be established that the main reason for the dismissal, either by the seller or the purchaser, was for an economic, technical or organisational reason entailing changes in the work force, such as redundancy, the dismissal may be fair in the circumstances.
 
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