EMPLOYMENT

Both employers and employees can contact us for legal advice.

EMPLOYERS

PJE Solicitors can act in protecting employers from potential employment claims. With compensation payments soaring, our advice is in ever greater demand. Our expertise has helped save employers from unnecessary litigation, as well as providing a first-class dispute resolution service.

EMPLOYEES

PJE Solicitors also acts for a wide variety of employees covering the full range of disputes. We have particular expertise in:

BULLYING

Bullying currently has no legal definition in the UK, but is generally seen as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine or injure the recipient in some way. Bullying is unwelcome and unwarranted. In a workplace, it often takes place when a more senior person is bullying someone in a more junior position. It is mainly seen as intimidating or offensive. A legal claim for bullying would generally come under legislation for harassment. 

COMPROMISE AGREEMENTS

A compromise agreement is a legally-binding form of contract that is used to settle employment disputes.  They are also known as Termination Agreements or Settlement Agreements, but whatever their name they all have the same purpose, which is to get the employee to waive their rights to pursue their legal claims against the employer in return for (usually) receiving a sum of money and/or other benefits.  The employer is particularly keen to get the employee to agree not to sue for unfair dismissal, breach of contract or discrimination either in respect of issues arising during the employee's employment or the termination of that employment. 

In order to be legally binding a compromise agreement must be in writing and the employee must obtain independent legal advice on the terms of the agreement. There is no set form and employers can add as many or as few clauses as they feel are required. Your employer will usually offer to make a contribution towards the cost of that advice, which may or may not cover all our costs in advising you.  We will always give you our best estimate on costs during the initial meeting.  

We have vast experience in both drafting and advising on compromise agreements and can usually see you very quickly and provide the advice or recommended amendments in a short period of time afterwards.  We are very used to negotiating the terms of compromise agreements.

CONTRACTS OF EMPLOYMENT

Contracts of employment are fundamental to the legal relationship between employer and employee.  Indeed it is a legal requirement under s.1 of the Employment Rights Act for an employer to provide a statement of the main terms and conditions of employment within 13 weeks of the employment commencing.

Employers who fail to provide a contract of employment to their staff not only are in breach of s.1 but also miss an opportunity to shape the employment relationship as they would like it.  Statutory laws and regulation often imply certain minimum requirements into the employment relationship, such as in respect of minimum notice periods, but an employer may want to improve upon the statutory provision.  Similarly a prudent employer will want to set out its policy in respect of sickness pay and give itself the option to request a medical report on an employee when that person is absent on long-term sick leave.  Statute doesn't give such a right.
We can draft contracts of employment for employers and we can review them for employees, if they want advice on their rights and obligations under the contract.

CONSTRUCTIVE DISMISSAL

Constructive Dismissal is one of the most commonly raised enquiries we get and one of the hardest claims to bring.  Strictly speaking it is a breach of contract claim, but it also can involve issues of unfairness.  In brief, if an employer takes some action or step that fundamentally breaches the terms of the contract of employment which is so serious that it makes it impossible for the employee to continue working then a claim for constructive dismissal may arise.  The employee would argue that the employer’s actions had the effect of dismissing him/her.  The employee then has to notify the employer that he/she is treating the contract as discharged and then claims for damages for the notice period (which is the remedy for breach of contract) and, if eligible to apply, compensation for being unfairly treated (see unfair dismissal).  You should always seek expert legal advice as soon as possible before claiming constructive dismissal.

DISCRIMINATION

Discrimination takes place when a person or group is treated differently to those around them, in either a favourable or unfavourable way. Usually when there is discrimination in the workplace it is done in a negative way, and it means that someone is being treated less favourably or differently from their colleagues and they are at a disadvantage because of this discrimination. UK law prohibits discrimination on the following grounds;

• Age
• Disability
• Race
• Religious or Philosophical Belief
• Sex (gender)
• Sexual Orientation

In other words, if a person is subjected to a detriment because of any one or more of the above factors the behaviour may be illegal.  There are two types of discrimination, indirect discrimination and direct discrimination. 

Direct discrimination takes place where, for example, someone is treated differently from their colleagues in the workplace purely because of a prohibited reason e.g  their sex, race, ethnicity, marital status, nationality or religion; e.g. if a female worker at a company is paid less than her male colleague for doing exactly the same job that would an example of direct sex discrimination. It may also allow the woman to bring a claim under the Equal Pay Act 1972.
Indirect discrimination occurs where the employer puts the employee at a disadvantage to their colleagues by imposing a policy or restriction that adversely impacts one particular group, e.g. if a company makes a rule that all men must be clean shaven then this may affect some religious groups. This kind of discrimination is unlawful, whether or not it is done on purpose, unless the employer can show that this discrimination was necessary for the business, e.g. if the men need to be clean shaven for hygiene reasons in food preparation.  In cases involving age discrimination, an employer has a defence open to it in if it can prove that the discriminatory action it took was justified.

If an employee is dismissed on discriminatory grounds then he or she may be able to bring a claim for unfair dismissal as well as discrimination.

Whistle blowing / Protected Disclosures

This is the common name given to claims under the Public Interest Disclosure Act 1998 (PIDA).  It protects workers (a broader category than just employees) who believe that they have been subjected to a detriment at work because they have disclosed information about their employer within certain specified categories (see below).  If a worker is subjected to a detriment, for instance dismissed, for raising concerns internally or with an external body (e.g a regulator) then he/she may be able to bring a claim in an Employment Tribunal.  A dismissal made in response to a protected disclosure will be an automatically unfair dismissal
The employee needs to make a “protected disclosure” – this means the information he discloses must be within certain specified categories, being;
- information relating to a breach of a legal obligation by the employer
- miscarriages of justice
- threats to health and safety or the environment
- information relating to crimes
- the concealing of evidence relating to any of the above

He must have a reasonable belief that the disclosure he makes is true and he must act in good faith in making the disclosure.  These types of claim are presented to an Employment Tribunal, do not require any qualifying period of employment and the compensation that can be awarded is not subject to any upper cap (as with unfair dismissal).  Compensation is not awarded for injury to feelings as with discrimination claims.

HARASSMENT

Generally means that someone is suffering because of someone else’s unwelcome conduct on grounds such as age, race, gender, nationality or religion, which humiliates or demeans the victim. Bullying and harassment is not only face to face, it can also take place via emails, and other forms of communication.
Commonly claims for bullying, harassment or victimisation will be linked to discriminatory grounds - such as sex or race.  In many cases workers will claim they are being victimised because they have sought to assert their rights under discrimination legislation (making what is known as a "protected act" and being subject to a detriment as a result), but the right not to be victimised is wider than that and covers workers who make claims for whistle blowing, raise health and safety issues or who take time off work to accompany a fellow worker in a disciplinary or grievance procedure and are subject to a detriment, amongst other categories.   
In addition to claims under specific employment legislation, an employee who is suffering from bullying or harassment may be able to bring a claim for breach of contract, because of breach of an implied term in their contract of employment.  The three most relevant in this context are (i) the term of mutual trust and confidence (ii) the employer will provide a safe system of work and (iii) an implied term following the case of Waters v Commissioner of the Metropolitan Police [2000] that "the employer shall render reasonable support to an employee to ensure that the employee can carry out the duties of his job without harassment and disruption by fellow workers".
A worker who has been the victim of at least two incidents of bullying behaviour at work could also bring a claim under the Protection from Harassment Act 1997  against the employer for failing to prevent it.  The Claimant has to show that the behaviour caused them anxiety or distress and would bring the claim in the civil courts. 

TUPE

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) are highly complex regulations designed to protect employees when the ownership of the business changes hands, or when a function is outsourced by a business to an external contractor.   The position under contract law is that a contract of employment terminates when the ownership of the business changes, which would mean that many employees would find themselves out of a job.  To protect them TUPE has the effect of transferring across all employees and their employment rights from the old business (the transferor) to the new business (the transferee).  The new employer must not alter or reduce the term and conditions of employment to the staff it "inherits" and this can create problems for employers when trying to harmonise terms and conditions amongst their staff. 

The main effect TUPE has, though, is to make it an automatically unfair dismissal for an employer to dismiss an employee because of the transfer.  Any employee who has 12 months continuous employment experience with the transferor and who is dismissed can bring a claim for unfair dismissal and will only have to prove that the reason for the dismissal is the fact of the transfer.  An employer can defend such a claim only if it can show that the dismissal was made on Economic, Technical or Organisational (ETO) grounds, for instance because of a restructuring following the acquisition of the business.

An employer contemplating transferring his business to another has an obligation to inform and consult with all staff affected by the transfer, and to provide specified information, unless it is not reasonably practical to consult.  An employee may issue a claim at an Employment Tribunal and the Employment Tribunal may award up to a maximum of 13 weeks pay for failure to consult.

The transferor is also under a duty to provide the purchaser with "employee liability information" being written details of any transferring employees not less than 14 days before the transfer.  Failure to do this can lead to an ET making an award of up to £500 per employee.
TUPE presents many challenges for both employee and employer alike. 

UNFAIR DISMISSAL

Unfair Dismissal is a claim made to an Employment Tribunal by employees who have in excess of twelve months continuous employment experience with their employer.  It is a claim that asks an Employment Tribunal to consider the fairness of the reason for terminating a person’s employment.
There are only five potentially fair reasons for bringing employment to an end;

• Redundancy
• Conduct
• Capability
• Frustration of contract
• Some Other Substantial Reason

An employer is therefore only allowed to rely on one of those five categories and, furthermore, he must act reasonably in relying upon the reason.  If not then a claim for unfair dismissal may arise.

Can I claim it?
To be able to present a claim to an Employment Tribunal for unfair dismissal you need to have been in continuous unbroken employment with your employer for twelve months.  You must also be an employee and not self-employed.  Complex issues can arise if you are a contractor and you need to seek advice.

How much can I get?
You are entitled to sue for your economic losses – i.e. loss of earnings, loss of pension contributions, contractual benefits arising from your dismissal.  You cannot claim for stress, anxiety or injury to feelings as a result of being unfairly dismissed, although if there is a discriminatory element to your dismissal then you may be able to.  Please see the section on Discrimination.

Claims for unfair dismissal are capped by statute, so that in this current year the maximum you could be awarded by a Tribunal (even if your losses were higher) is £66,200 by way of compensation if the Tribunal thought it “just and equitable” to do so.  In addition the Tribunal makes a “Basic” award for each complete year of service multiplied by the sum of £350 (again this figure increases each year)

WRONGFUL DISMISSAL / BREACH OF CONTRACT

Wrongful dismissal is a breach of contract claim.  It may arise when an employer dismisses an employee without paying the correct period of notice.  It is not to be confused with Unfair Dismissal, which is a statutory claim.
A breach of contract claim can arise if one of the parties to a contract has unilaterally breached the terms in some way.  The breach could be in respect of any issue in the contract and the remedy to which a party may be entitled will depend upon the seriousness of the breach and what steps the party not in breach has taken in response.

Can I claim it?
Because it is a breach of contract claim, anyone whose contract of employment has been breached can make a claim for wrongful dismissal.