d08ebba6

3 things you need to know about equality, diversity and inclusion

Fri, 07 Mar 2025 17:33:54 GMT

3 things you need to know about equality, diversity and inclusion

Equality, diversity and inclusions ( EDI ) is the idea that all people should have equal rights and equal treatment and be welcomed and included in the workplace. Therefore, no one should experience any disadvantage because of reasons protected by law (referred to as protected characteristics ) and that each person should be given the same opportunities as others according to their needs .

EDI are separate but interconnected issues , which may require different approaches .

A workplace encouraging EDI can help:

make it more successful
keep employees happy and motivated
prevent serious or legal issues arising, such as bullying, harassment and discrimination
to better serve a diverse range of clients and customers
improve ideas and solve problems
attract and retain good staff.

1) What is equality?

Equality in the workplace means equal job opportunities and fairness for you.

Your employer must not treat you less favourably because of their protected characteristics (eg disability).

Failure to provide equality in the workplace could lead you to suffer from work related stress and to raise a grievance for contravention of the Equality Acy 2010 and subsequently, an employment tribunal claim , whi ch could include :

2) What is diversity?

Diversity is the range of people in an organisation. This could include people with different ages, religions, beliefs, ethnicities, people with disabilities, and both men and women. It also means valuing those differences that you possess.

Failure to recognise diversity in the workplace can lead to you raising grievances and making employment tribunal claims for say:

Employers should ensure:

what is expected of its employees and directors is actually happening in the workplace
employees and directors understand what is legally protected
changes are made if what is expected is not happening (eg policies and training)
employees and directors understand the benefits of having a range of diverse people in the workplace.

(3) What is inclusion?

An inclusive workplace means everyone feels valued at work. It lets you and all other employees feel safe to:

come up with different ideas
raise issues and suggestions knowing this is encouraged
try doing things differently to how they have been done before, with management approval.

Comment

If you are experiencing issues with EDI in the workplace. You may feel out of your depth and in need of support. Marjon Law is here to help.

3 things you need to know about preliminary hearings in employment tribunals

Fri, 15 Nov 2024 16:23:43 GMT

3 things you need to know about preliminary hearings in employment tribunals

If you have commenced an employment tribunal claim against your employer or former employer and are a litigant-in-person you may have received a notice from the tribunal for a preliminary hearing. This can feel overwhelming.

As part of the employment tribunal claim, you are called the Claimant, and your employer or ex-employer defending the claim is called the Respondent.

(1) What is a preliminary hearing?

There are two types of preliminary hearing:

case management
preliminary issue.

A case management at preliminary hearing is normally listed in most cases. The purpose is to agree on directions for the disposal of the case and further agree on a list of issues that the tribunal will need to determine at a final hearing.

A preliminary hearing is listed to determine a preliminary issue and could be for several reasons, for example:

if you are disabled within the meaning of section 6 of the Equality Act 2010
an application to amend a claim
an application for a deposit order disputing the prospects of success of a claim or response
an application for a strike out of a claim or response.

(2) What do you need to prepare for a preliminary hearing?

For case management at preliminary hearing, you will need to:

prepare an a case management agenda with your proposed directions and list of issues, which you should try and agree with the Respondent
send the completed agenda to the tribunal 7 days before the preliminary hearing
in some instances you will need to send a hearing bundle to the tribunal, which should include the Acas early conciliation certificate, your claim form and the Respondent’s response form.

The employment tribunal will send an a case management agenda template.

For other preliminary hearing, this will depend on the issue to be determined. For example, if this is to prove that you are disabled within the meaning of section 6 of the Equality Act 2010, a hearing bundle will need to be provided that includes, a disability impact statement and medical evidence.

If in doubt, expert advice should be sought for the particular issue to be determined.

(3) Do you need legal representation?

In short no, tribunals were originally designed for litigants-in-person and you can represent yourself at a preliminary hearing. The employment judge at the preliminary hearing should help you within reason on matters that you are unsure of, as s/he must give effect to the overriding objective of the Employment Tribunals Rules of Procedure by ensuring that the parties where reasonably practicable are on an equal footing.

Over time, employment law has become more complicated – especially where a claim deals with unlawful discrimination and legal representation should ideally be sought from specialist employment lawyers.

Comment

If you are a litigant-in-person in an employment tribunal claim this can be scary, especially where the Respondent is represented by solicitors. You may feel out of your depth and in need of support. Marjon Law is here to help.

3 things you need to know about ADHD in the workplace

Fri, 18 Oct 2024 14:01:46 GMT

3 things you need to know about ADHD in the workplace

If you have been diagnosed with attention-deficit/hyperactivity disorder ( ADHD ), you may be struggling at work.

Communication with your colleagues and managers could be problematic, as your ADHD traits may impact your ability to interpret non-verbal cues or pick up on subtle social dynamics. As a result, you may be misunderstood or excluded during team meetings or informal conversations.

Another issue you may encounter is the misconceptions and stereotypes associated with employees who have ADHD. Colleagues who are unaware of your condition might perceive your behaviours as odd or eccentric, leading to judgment and misconceptions about your competence and professionalism. However, your employer may not actively promote a culture of diversity and inclusion that would expose such myths and create a safe space for you to disclose your ADHD without fear of discrimination.

(1) Do you have employment protection?

ADHD is generally categorised as a disability within the meaning of section 6 of the Equality Act 2010, which is defined as:

a person who has a physical or mental impairment
which has a substantial and long-term adverse effect
on their ability to carry out normal day-to-day activities.

You are only protected if your employer has ‘knowledge’ of your disability. However, you may be reluctant to disclose this without training being provided to colleagues and managers on neurodiversity awareness, promoting empathy and understanding.

(2) What must an employer do to accommodate an employee with ADHD?

Your employer has a statutory a duty to make reasonable adjustments to your working conditions because you have ADHD in accordance with section 20 of the Equality Act 2010.

Examples of reasonable adjustments for employees with ADHD could be:

providing noise-cancelling headphones to those with sensory sensitivities
allowing more time to digest information
allowing more time to re-read and repeat tasks
allowing recordings if it helps process and/or remember information
opportunity for structured or frequent breaks
provide flexibility on the ways things are done and not be too rigid.

You may want to apply for flexible working , as maintaining concentration and productivity while working long hours could be a problem. An estimated 40-80% of adults with ADHD, suffer from chronic sleep problems, resulting in work-related stress and anxiety.

Access to Work can provide financial support to help you with your ADHD in the workplace.

A Reasonable Adjustments Passport , is a document that outlines the specific needs and adjustments to accommodate your ADHD in the workplace. It can be used as a tool for both you and your employer to ensure that you can perform at your best.

(3) What if an employer fails to support an employee with ADHD at work?

If your employer (or a work colleague) treats you badly because of your ADHD or ignores your ADHD by failing to provide support, this may impact you resulting in rejection-sensitive dysphoria (RSD). RSD is a symptom associated with ADHD that causes intense feelings related to the belief that you have let other people down, embarrassed yourself, failed at something, or made a serious, unfixable mistake.

If work has become overwhelming, you may wish to leave your employment with an exit package or bring an employment tribunal claim .

Comment

Whatever your situation and contrary to what is reported in the media, many employers (irrespective of their size and resources) fail to understand employees with ADHD and provide adjustments for them.

3 things you need to know about "no win - no fee" for employment law disputes

Wed, 11 Sep 2024 16:50:51 GMT

3 things you need to know about "no win - no fee" for employment law disputes

If you have experienced unjust treatment in the workplace, you may be experiencing stress and this be overwhelming.

You may have had enough and want to leave, but you also want to receive compensation you rightfully deserve due to being badly treated.

The legal fees in pursuing action against your employer can be expensive with no guarantee of success. The alternative could be a "no win - no fee" arrangement.

(1) What is no win - no fee?

A "no win - no fee" arrangement is where you pay a percentage fee based on the value of the win and if there is no win there is no fee to pay.

A win means a monetary value of a negotiated settlement.

The "no win - no fee" arrangement between you and your lawyer is regulated under The Damages-Based Agreements Regulations 2013. Most reputable lawyers offering a "no win - no fee" arrangement will require you to sign a damages-based agreement, which will govern the relationship between you and the lawyer.

More importantly, entering into a "no win - no fee" arrangement eliminates the need for you to worry about paying legal fees, whether the claim is successful or not.

(2) What is the percentage fee?

Lawyers can charge a maximum fee of 35% including VAT (approximately 29% plus VAT).

Most lawyers will carry out an assessment to decide if they are prepared to offer you a "no win - no fee" arrangement.

Depending on the complexity of your case and the number of documents involved, lawyers may charge to carry out the assessment.

(3) Typical questions about "no win - no fee"

Am I eligible for a "no win - no fee" arrangement with an employment lawyer?

You must be at least 18 years old. However, not all types of employment law cases are guaranteed eligibility for a "no win - no fee" arrangement.

How much compensation can I claim using a "no win - no fee" arrangement with an employment lawyer?

There is no definite answer to this question since the amount of compensation you will receive will depend on several factors eg how much your earn and whether the has been any unlawful discrimination.

What is the catch with a "no win - no fee" arrangement with an employment lawyer?

There is no catch as the "no win - no fee" arrangement is governed by a damages-based agreement. If it is not, then you should look for another employment lawyer.

Damages-based agreements are designed to provide everyone in the UK with access to expert legal services and the right to claim compensation regardless of their financial status and whether you are successful in recovering compensation or not.

What can I expect from a "no win - no fee" employment lawyer?

No matter your status, if Marjon Law agrees to act for you using a damages-based agreement to negotiate a settlement, you will receive the same quality service, as if you had paid an hourly rate or a fixed fee.

We will try and settle your case for the most money and in the quickest time.

3 things you need to know about menopause in the workplace

Thu, 25 Jul 2024 16:09:06 GMT

3 things you need to know about menopause in the workplace

If you are menopausal, you may be struggling at work as your employer does not understand the difficulties you may face, and the adjustments needed to accommodate you in the workplace. You may feel lost and alone!

(1) What rights do menopausal employees have?

Menopause generally occurs in women in their 40s and 50s but can occur earlier in life. There are more than 3 million menopausal women aged over 50 in the workplace.

The symptoms vary in severity but can have a significant impact on day-to-day activities and the ability to perform as usual in the workplace Symptoms may include:

mood swings
hot flushes
negative impact on memory concentration and focus at work
it can take longer to recover from illness
anaemia
excessive bleeding
fatigue
interrupted sleep.

The side effects of the symptoms can result in a loss of confidence, stress, anxiety and depression.

You may have taken time off because of the menopause symptoms but you have not told your employer the real reason for your absence.

(2) How should employers support menopausal employees?

Menopause is not in itself a protected characteristic in the same way that age, sex, and disability are under the Equality Act 2010.

Symptoms of menopause can give rise to potential protected characteristics and statutory employment protection rights:

age – as menopause generally impacts woman between the ages of 45-55
disability – statutory definition physical or mental impairment that has a substantial long-term adverse effect on normal day-to-day activities, which could cover menopause symptoms
sex – as menopause only applies to woman.

There is an overriding duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all its employees under the Health and Safety at Work etc Act 1974.

Employers have a statutory duty to make ‘reasonable’ adjustments to all employees’ working conditions if they have a ‘disability’ in accordance with section 20 of the Equality Act 2010.

However, there are more practical steps that employers should take:

generally assessing health and safety risks at work
minimising, reducing and where possible removing health and safety risks for staff.

For employees affected by the menopause, this includes:

ensuring menopause symptoms are not made worse by the workplace or its work practices
making changes to help staff manage their symptoms when doing their work.

For the menopause, a risk assessment should include, for example:

the temperature and ventilation of the workplace
the material and the fit of the organization’s uniform, if applicable, and whether it might make staff going through menopause feel too hot or worsen skin irritation
whether there’s somewhere suitable for staff to rest if needed eg a quiet room
whether toilet facilities are easily accessible
whether cold drinking water is available
whether managers and supervisors have been trained on health and safety issues relating to menopause.

(3) What if your employer ignores your needs?

If you are menopausal and your employer (or a work colleague) treats you badly by ignoring your condition and/or failing to provide support, this may impact your mental health.

Adverse comments may include:

“stop talking about lady issues”
“there is nothing wrong with you”
“stop complaining”
“you have to wear the uniform – it is company policy”.

Adverse conduct may include:

refusal to adjust the room temperature
forcing you to wear a restrictive uniform
placing you on a PIP for performance issues
subjecting you to disciplinary action eg for snapping at a line manager
subjecting you to capability action eg due to sickness absence.

You may wish to leave or pursue an employment tribunal claim. However, we strongly advise that you take appropriate legal advice before doing so.

Comment

Whatever your situation and contrary to what is reported in the media, many employers (irrespective of their size and resources) fail to understand menopausal employees and provide adjustments for them.

3 things you need to know about the proposed employment law changes planned by the Labour government

Fri, 05 Jul 2024 15:57:25 GMT

3 things you need to know about the proposed employment law changes planned by the Labour government

The Labour party won a landslide victory in the General Election and Sir Kier Starmer is the new Prime Minister.

Labour launched the ‘Labour’s Plan to Make Work Pay: Delivering A New Deal for Working People’ on 24 May 2024 and much of this reached its manifesto for the General Election.

What employment changes have been proposed?

Some of the proposed changes are:

from day 1 of employment, an employer must dismiss an employee ‘fairly’ for reasons of capability, conduct or redundancy or during probationary periods provided that there are fair and transparent rules and processes

from day 1 of employment, employees will be entitled to parental leave and statutory sick pay

from day 1 of employment, flexible working will be the default except where it is not reasonably feasible

increase the time limit within which someone can bring an employment tribunal claim from 3 months to 6 months

introduce a “right to switch off”, following a similar model to that already in Ireland and Belgium

introduce a right for employees to make a collective grievance to Acas

reform ‘fire and rehire’ with effective remedies against abuse and replace the inadequate statutory code brought in by the Conservative Government, with a strengthened code of practice

ban ‘exploitative’ zero-hours contracts and ensure everyone has the right to have a contract that reflects the number of hours they regularly work, based on a 12-week reference period

replace the 3-tier system for employment status in the UK, with individuals classified as employees, workers self-employed with newly defined single status worker and self-employed

create a single enforcement body to inspect workplaces and take action against exploitation

strengthen protections for whistleblowers, including updating protections for women who report sexual harassment at work

introduce a Race Equality Act giving the right to equal pay to Black, Asian and other ethnic minority people and strengthening protections against dual discrimination

introduce a new right to equal pay for disabled people

introduce disability and ethnicity pay gap reporting for employers with more than 250 staff

make it unlawful to dismiss a woman who is pregnant for 6 months after her return to work from maternity leave, except in specific circumstances

require employers with more than 250 employees to produce a Menopause Action Plan, setting out how they will support employees through the menopause

introduce a new duty on employers to inform all new employees of their right to join a union (as part of the written statement of particulars)

update trade union legislation by removing restrictions on trade union activity

introduce an obligation to collectively consult on large-scale redundancies when employees are at risk of redundancy across the whole of a business, rather than at one workplace or local employment unit

strengthen the existing set of rights and protections for workers subject to TUPE processes.

What will this mean for businesses and individuals?

costs for businesses will increase
individuals will have more employment rights
individuals will have more secure employment
employment will, for business, become more inflexible
enforcement would be enhanced so that the current law would be made more effective
employment tribunal claims are likely to increase.

Employment law rights come home

Since the UK left the EU, employment law is no longer made by or governed by Europe, which means greater autonomy for the UK to both change existing employment law and implement new employment law.

Whether the Labour Government will implement all or any of the above only time will tell!

3 things you need to know about extending time limits for employment tribunal claims

Tue, 19 Mar 2024 17:09:29 GMT

3 things you need to know about extending time limits for employment tribunal claims

If you have presented an employment tribunal claim outside of the time limit can a tribunal allow the claim to be heard out of time?

(1) What are the time limits?

Generally, an employment tribunal claim must be made within 3 months less than 1 day (Time Limit) of the complaining act (eg dismissal or discrimination). However, the Time Limit can be extended by Acas early conciliation by up to 6 weeks provided that this is commenced within the Time Limit.

(2) What is the test for extending the time limit for dismissal claims?

The time limit for claims of (constructive) unfair dismissal and wrongful dismissal can be extended by an employment tribunal if it decides that it was not reasonably practice for you to have presented the claim in time.

If it was not reasonably practicable to claim within the initial 3 months, the claim must still be presented within a reasonable further period.

The tribunal has the discretion to extend the time for presenting the claim by whatever further period it considers reasonable, but case law suggests that this will be the exception rather than the norm.

In exercising its discretion, the tribunal will assess whether it was practicable for you to present the complaint earlier, considering the specific circumstances of the case. The factors that may be relevant include:

the efforts made by you to pursue the claim
the obstacles or difficulties faced by you eg illness
misrepresentation by your employer as to the time limit
advice from unqualified advisers
whether there were any ongoing processes (such as grievances) that affected your ability to present the claim
new information coming to light after the time limit has expired that was not reasonable for you to be aware of earlier eg in a redundancy situation
the merits of the claim may also impact the decision on extension.

If you have presented an employment tribunal claim, you will be expected to make the appropriate enquiries as to the enforcement of your rights to bring a claim, including the relevant time limits.

Technical problems are unlikely to be persuasive. Tribunals will be very critical of the fact that the submission of the claim has been left until the last minute. Furthermore, following an internal process of appeal will not, in itself, be a good reason for an extension of time. You should submit your claim before the time limit runs out, even if the process has not finished.

Unfortunately, a mistake in making a claim late or failing to make appropriate enquiries when you became aware of your right to make a claim will not normally be enough to extend time.

(3) What is the test for extending the time limit for discrimination claims?

The time limit for claims of direct and indirect discrimination, discrimination arising from disability, failure to make reasonable adjustments, harassment and victimisation can be extended by an employment tribunal by such period as it considers just and equitable.

In exercising its discretion, the tribunal will assess the fairness to the parties, considering all factors of the case. The factors that may be relevant include:

the conduct of the parties
the length of delay
the reasons for delay eg any ongoing internal processes
whether the cogency of evidence is likely to be affected by the delay
whether a fair trial is still possible
whether your employer has cooperated with requests for information.

In cases where there is more than one act of discrimination and an earlier act or acts of discrimination are out of time, the tribunal will consider whether the earlier conduct relates to the later conduct. If so, the tribunal decides that the conduct extends over a period and will be treated as done at the end of the period ie the date of the last act of discrimination.

Comment

Extending the time limit for employment tribunal claims is not a paper exercise and will almost certainly result in a preliminary hearing for dismissal cases and discrimination cases, where the last act of discrimination is out of time, to determine this point.

3 things you need to know about changes to employment law in 2024

Thu, 11 Jan 2024 16:28:24 GMT

3 things you need to know about changes to employment law in 2024

The Retained EU Law (Revocation and Reform) Act 2023 (Act) confirms that only those laws expressly identified by the Government at the end of 2023 would be revoked. In the short, this means all EU-derived employment law will remain in place (subject to the reforms).

From 1 January 2024, the Act creates uncertainty over the status of EU case law and the way EU-derived law will be interpreted by UK courts.

As part of the reforms, the Government introduced legislation to amend EU-derived law.

(1) Holiday pay and working time

The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023, came into force on 1 January 2024 and amend the Working Time Regulations 1998, as follows:

for holiday years starting after 1 April 2024, ‘rolled up’ holiday pay (ie is the practice of including an amount for holiday pay on top of a worker’s normal hourly rate, paid at the time they perform the work, rather than when they are on holiday) is now lawful for part‐year workers or those with irregular hours by providing a standard calculation of 12.07% of pay

workers are permitted to carry over their statutory holiday (ie 4 weeks) to the following year where they have been unable to take holiday due to family-related leave or where a worker has been unable to take leave due to sickness for a maximum of 18 months. In addition, there will be a right to carry over annual leave if an employer fails to encourage workers to take annual leave or doesn’t give them a reasonable opportunity to take it. This will place a positive duty on employers to ensure workers are given the chance to take holiday

‘normal remuneration’ now includes commission and regular overtime

the requirement for employers to keep records of all working and rest time has been abolished.

The Government has introduced guidance covering the changes https://www.gov.uk/government/publications/simplifying-holiday-entitlement-and-holiday-pay-calculations/holiday-pay-and-entitlement-reforms-from-1-january-2024?mc_cid=c00bbd4c00&mc_eid=c029591e05

(2) Equality

The Equality Act 2010 (Amendment) Regulations 2023, came into force on 1 January 2024 and amend the Equality Act 2010, as follows:

the legislation has been extended to allow claims of indirect discrimination by association (section 19A). Individuals who do not directly have a protected characteristic are now able to claim discrimination where they have suffered similar disadvantages from an employer’s provision, criterion or practice

the definition of disability (section 6) now accounts for a person’s ability to participate fully in working life on an equal footing with other workers, when considering ‘day to day activities’

an extension to direct discrimination (section 13) to over a discriminatory statement concerning not wanting to employ a person with a certain protected characteristic, even where there is no recruitment process ongoing

discrimination on the grounds of breastfeeding is now expressly provided that this is covered by the protected characteristic of sex (section 13)

the introduction of a ‘single source test’ for establishing an equal pay comparator. This means that a comparator can work for a different business as long as the body responsible for setting the terms is the same.

(3) Flexible working

The Employment Relations (Flexible Working) Act 2023, will come into force on 6 April 2024 and amend the Flexible Working Regulations 2014 and the Employment Rights Act 1996, as follows:

employees will no longer need 26 weeks’ service in order to make a flexible working request – it will be a ‘day-1 right’

employees will be able to make 2 requests for flexible working in any 12-month period instead of 1

employers will have 2 months (rather than 3 months) to respond and must consult with employees before coming to a decision

employees will no longer have to explain the impact of their request. The responsibility to consider the impact will fall on the employer.

Employers will still be able to refuse a flexible working request for one of the 6 statutory grounds in the Employment Rights Act 1996.

3 things you need to know about neurodiversity in the workplace

Wed, 05 Apr 2023 15:50:39 GMT

3 things you need to know about neurodivergent employees

If you are neurodivergent, you may be struggling at work as your employer does not understand the difficulties you may face, and the adjustments needed to accommodate you in the workplace. You may feel lost and alone!

(1) What does neurodivergent mean?

Neurodivergent is a non-medical umbrella term that describes people with variation in their mental functions and can include conditions such as autism spectrum disorder ( ASD ) or other neurological or developmental conditions such as attention-deficit/hyperactivity disorder ( ADHD ), Dyspraxia, and Dyslexia. These conditions all fall within the spectrum of “Neurodiversity” and are all neurodiverse conditions. They are generally categorised as a disability within the meaning of section 6 of the Equality Act 2010.

You could suffer from more than one neurodiverse condition.

Neuro-differences are recognised and appreciated as a social category similar to differences in ethnicity, sexual orientation, and gender.

(2) How should employers support neurodivergent employees?

Employers have a statutory duty to make ‘reasonable’ adjustments to all employees’ working conditions if they have a ‘disability’ in accordance with section 20 of the Equality Act 2010.

However, there are more practical steps that employers should take:

Promote accessibility

If you are neurodivergent your employer should find out ways to help you. Everyone has unique needs, and your employer should try to tailor the working environment to you.

Some examples (at little cost to an employer) would be providing physical aids (blue lights, overlays), providing noise-cancelling headphones to those with sensory sensitivities, or building spaces for those who have spatial sensitivities.

Raise awareness

The level of awareness and understanding of neurodiversity is generally low in most workplaces. Therefore, you may be forced to educate your employer who may incorrectly rely on assumptions rather than facts in accommodating neurodivergent employees.

Since research shows that employees perform better when they can be themselves at work, providing open education and discussion about neurodiversity will help you fulfil your true potential.

Provide time and options

Your employer should:

allow you more time to digest and record information
provide flexibility on the ways things are done and not be too rigid
allow you to draw, write or record if it helps you to process and/or remember information
allow you additional time to re-read and repeat tasks.

Access to Work can provide financial support to help you in your workplace.

Recognise and embrace differences

Your employer should resist imposing strict policies and generalising. Everyone is different, and employers need to be flexible when responding to your needs. For example, placing an employee on a performance improvement plan because of perceived failings in the way they work without properly taking into consideration that they are neurodivergent would most probably be an act of disability discrimination.

(3) What if your employer ignores your needs?

If you are neurodivergent and your employer (or a work colleague) treats you badly by ignoring your condition and/or failing to provide support, this may impact your mental health. You may wish to leave or pursue an employment tribunal claim. However, we strongly advise that you take appropriate legal advice before doing so.

Comment

Whatever your situation and contrary to what is reported in the media, many employers (irrespective of their size and resources) fail to understand neurodivergent employees and provide adjustments for them. We are hear to help!

3 things you need to know about restricted reporting orders [Rule 50 orders]

Mon, 20 Mar 2023 16:35:49 GMT

3 things you need to know about restricting reporting orders in employment tribunal claims

If you are involved in an employment tribunal claim, especially if you are unrepresented, an employment tribunal either you, your employer or ex-employer may want to apply for an order preserving privacy and restricting disclosure (otherwise known as 'Rule 50 Order' or 'Restricted Reporting Order').

(1) What is a Rule 50 Order?

Employment tribunals are governed by the Employment Tribunals Act 1996 and the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013. A Rule 50 Order is specifically governed by rule 50 of the Employment Tribunal Rules of Procedure 2013, which is a schedule to the Regulations.

A Rule 50 Order is designed to protect the privacy and anonymity of the specified parties, witnesses or other persons who are mentioned in an employment tribunal claim, where the evidence of those involved in the claim would normally be held in public.

An employment tribunal may, at any stage of the proceedings, and either on its own initiative or following an application, make a Rule 50 Order with a view to preventing or restricting the public disclosure of any aspect of the employment tribunal claim, so far as it considers necessary:

in the interests of justice
to protect a person’s rights in accordance with the European Convention on Human Rights
protection of confidentiality

of any person involved with the tribunal proceedings.

Before making a restricted reporting order, an employment tribunal will have to give full weight to the principle of open justice and the European Convention on Human Rights, in particular, the right to freedom of expression ( Clifford v Millicom Services UK Ltd and others ).

A Rule 50 Order may include:

an order that a hearing that would otherwise be in public be conducted, in whole or in part, in private
an order that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by the use of anonymisation or otherwise, whether in the course of any hearing or in its listing or in any documents entered on the Register or otherwise forming part of the public record
an order for measures preventing witnesses at a public hearing being identifiable by members of the public
a restricted reporting order within the terms of section 11 or 12 of the Employment Tribunals Act (ie matters relating to sexual misconduct and disability).

An employment tribunal can make a Rule 50 Order on its own initiative without a hearing, and before either, you or your employer or ex-employer has had the opportunity to make representations.

A Rule 50 Order must specify the persons whose identity is to be protected and may (but need not) specify the identifying matter whose publication is prohibited.

The duration of a restricting reporting order would not normally extend beyond the promulgation of the decision on liability (ie the date the written decision is sent to the parties). However, an employment tribunal can make a Rule 50 Order that extends beyond the proceedings.

A tribunal must display a notification that a Rule 50 Order has been made on the tribunal listings notice board at and on the door of the room in which the proceedings affected by the order are taking place.

A Rule 50 Order does not automatically expire if a claim is withdrawn.

(2) Can you challenge a Rule 50 Order?

You, your employer or ex-employer, or any other person with a legitimate interest in the employment tribunal claim, who did not have the opportunity to make representations before a Rule 50 Order was made, may apply in writing for it to be revoked or discharged. This can be done by either written representations or at a hearing.

The category of ‘other person’ with a legitimate interest could enable media publications to challenge the making of such orders.

(3) What happens if you breach a Rule 50 Order?

If you, your employer or ex-employer, or any other person who publishes information in breach of a Rule 50 Order will have committed a criminal offence, which is punishable with a fine not exceeding level 5 on the standard scale on summary conviction. However, it is a defence if publication took place when the publisher was not aware, and neither suspected nor had reason to suspect, that an offence was being committed.

Comment

If you are seeking to make a Rule 50 Order or wish to oppose one, expert legal advice should be sought as soon as possible.

3 things you need to know about settlement agreements

Tue, 28 Feb 2023 17:18:17 GMT

3 things you need to know about settlement agreements

You may have been asked to have a protected conversation or a without prejudice conversation by your employer, in other words, an “off the record” discussion about your employment. Such a discussion would normally involve you agreeing to enter into a settlement agreement.

(1) What is a settlement agreement?

A settlement agreement (formerly known as compromise agreements) is a legally binding document that is for your employer’s benefit and not yours. The purpose of the settlement agreement is to prevent you from pursuing any civil claim or employment tribunal claim.

Your employer will most probably pay you compensation to prevent you from pursuing all claims that you have or may have against your employer. This payment may be expressed as tax-free. However, it is likely the settlement agreement will include a tax indemnity clause, which will mean if HM Revenue & Customs don’t believe the payment was genuinely for what it is expressed to be paid for, you will have to pay your employer for the income tax and employee national insurance contributions. You may also be liable for penalties, costs and interest too.

Most settlement agreements are drafted in a way that are not necessarily straight-forward and the terms are usually in favour of your employer. There expert legal advice from specialist employment lawyers is vital.

For a settlement agreement to be legally binding, you must take legal advice on the terms and effect of the agreement.

As a general rule, the Acas Code of Practice on Settlement Agreements provides for a minimum period of 10 calendar days should be allowed to consider the proposed formal written terms of a settlement agreement and to receive independent advice, unless you agree otherwise.

(2) Do you have to accept the terms of a settlement agreement?

In short no! Depending on the facts, you may be able to negotiate better terms, including higher compensation. However, it vital you seek specialist legal advice as early as possible. Some lawyers will simply “rubber stamp” a settlement agreement rather than positively advice you on the terms. Marjon Law will advise you on whether you have been offered a good deal and if the terms of the settlement agreement are fair and reasonable.

In some cases, the compensation payment and/or the terms of a settlement agreement may not be reasonable. You will then be able to negotiate what your employer has offered you and if your employer refuses to be reasonable, you may be able (depending on the facts) to bring an employment tribunal claim.

Your employer cannot put undue pressure on you to agree a settlement agreement. This would be “improper behaviour” by your employer and could lead to the settlement agreement being overturned later (eg your employer says to you before disciplinary proceedings have begun that you will be dismissed if you don’t accept the offer). Improper behaviour also includes:

all forms of bullying, harassment and intimidation
physical assault or the threat of physical assault and other criminal behaviour
all forms of victimisation
discrimination because of age, sex, race, disability, sexual orientation, religion or belief, gender reassignment, pregnancy and maternity, and marriage or civil partnership.

Where you employer is making many redundancies, and employee representatives are involved, the compensation and the terms of the settlement agreement may have already been agreed and you may be stuck with both. Therefore, you should speak to employee representative (or if you are an employee representative) ensure that you contact a specialist employment lawyer who can seek to agree the terms of the settlement agreement with your employer and then act for all the employees that have been impacted by redundancy. Many employees like this, as they prefer to deal with one lawyer rather than many different ones. Marjon Law is experienced in assisting multiple employees at the same time and ensuring that they receive a settlement agreement with fair and reasonable terms.

(3) What are the benefits of you signing a settlement agreement?

Where a termination of employment is involved, a settlement agreement offers the benefit of certainty and a clean break between you and your employer.

You will have the security of a written agreement setting out what you will receive eg compensation and reference, what you can do, and what your employer can do after the settlement agreement has been signed. If you employer fails to comply with the terms of the settlement agreement, you will be able to bring a claim for breach of contract.

Although, there may be provisions in a settlement agreement, that prevent you from doing and saying certain things, you will not be prevented from:

reporting an offence (eg discrimination or sexual harassment) to the police
reporting discrimination or harassment to your employer
making a protected disclosure under whistleblowing law – for further information see our specific page on whistleblowing
reporting misconduct to a professional body or regulator
cooperating with and giving evidence in connection with a criminal or regulatory investigation
disclosing information to the tax authorities in connection with tax-related matters
seeking legal, medical or other professional advice
disclosing any information which you are legally required to disclose
disclosing or reporting discrimination or harassment which has not happened yet.

If the above provisions exist in a settlement agreement, this part of the agreement will not be enforceable.

3 things you need to know about maternity leave

Wed, 22 Feb 2023 16:03:37 GMT

3 things you need to know about maternity leave

You may be about to start maternity leave or have already stated it. Either way, while on maternity leave you have certain statutory rights and protections.

(1) What are you entitled to receive while on maternity leave?

You are entitled to receive all contractual benefits excluding normal pay.

For the first 6 weeks of maternity leave, you are entitled to receive 90% of your normal weekly pay, and for the following 33 weeks, you are entitled to receive statutory maternity pay.

Some employers provide enhanced maternity pay eg your normal weekly pay for a set period of time.

In relation to contractual benefits, you are entitled to continue to receive them, such as:

company car (provided it includes personal use)
mobile phone (provided it includes personal use)
luncheon vouchers
club membership
health and other insurance continue.

You should also continue to participate in share schemes, professional subscriptions, free or subsidised travel, and subsidised childcare.

In relation to commission and bonuses, your employer should pay either pro rata to cover the periods where you are at work or considered to be at work. For example, if you were at work for half of the year and on maternity leave for the other half, you should be entitled to half of the bonus or commission (if you meet the conditions attached to the bonus such as achievement of performance targets).

(2) Are you still entitled to accrue holiday while on maternity leave?

All employees have a statutory right to 5.6 weeks (28 days for full-time employees) paid holiday entitlement in each holiday leave year. Statutory annual leave is a legal minimum entitlement. If you work part-time, this entitlement amount should be given pro rata.

Annual leave can include public and bank holidays (8 days), although some employers offer additional paid holidays than the statutory minimum.

The government has a useful calculator for working out your entitlement to annual leave.

You continue to accrue annual leave during your maternity leave as if you were at work. If possible, speak to your employer before you go on maternity about when to take your holiday. Holidays can be taken either before you start maternity leave or at the end of your maternity leave. You can also use your annual leave to create a phased or part-time transition back to work (eg taking every Friday off for a set period of time).

If you don’t take all of your annual leave entitlement before your maternity leave, your employer must allow you to carry over any annual leave to the next leave year. This is because maternity leave is a maximum of 52 weeks (1 year), and you cannot take annual leave and maternity leave at t he same time.

(3) What happens when your maternity leave ends?

When your maternity leave ends, you are entitled to return to the same role or a comparable one depending on whether you have taken ordinary maternity leave ( OML ) ie for 26 weeks or additional maternity leave ( AML ) ie for up to 52 weeks.

You are normally entitled to return to work after OML in the same role and on the same terms and conditions of employment as you held before commencing maternity leave.

If you have taken any period of AML, and it is not reasonably practicable for your employer to allow you to return to the same role you had prior to taking maternity leave, your employer may provide you with another suitable and appropriate role on terms and conditions that are not less favourable than those applicable to your previous role.

Comment

Whatever your situation and what is reported in the media, employers still continue to treat women badly who: (a) are about to take maternity leave; (b) are on maternity leave; or (c) seek to return from maternity leave.

3 things you need to know about LinkedIn accounts

Thu, 16 Feb 2023 15:55:07 GMT

3 things you need to know about LinkedIn accounts

Unlike other free social networking sites, LinkedIn requires connections to have a pre-existing relationship or to be introduced by another member.

Basic membership for LinkedIn is free. However, premium subscriptions can be purchased to provide members with better access to other members in the LinkedIn database.

(1) Who owns the account?

A LinkedIn account is generally considered to be personal to you and does not belong to your employer.

Clause 2.2 of the LinkedIn ‘User Agreement’ states:

‘Members are account holders. You agree to: (1) try to choose a strong and secure password; (2) keep your password secure and confidential; (3) not transfer any part of your account (e.g., connections) and (4) follow the law and our list of Dos and Don’ts and Professional Community Policies. You are responsible for anything that happens through your account unless you close it or report misuse.

As between you and others (including your employer), your account belongs to you. However, if the Services were purchased by another party for you to use (eg Recruiter seat bought by your employer), the party paying for such Service has the right to control access to and get reports on your use of such paid Service; however, they do not have rights to your personal account.’

Some practitioners argue that an employer could create a LinkedIn account on your behalf during the course of your employment (defined as the legal consideration of all circumstances which may occur in the performance of a person’s job, especially during a period of time where specific objectives are given by the employer to the employee), including providing the password and creating the content on the account and that the account would ultimately belong to the employer.

However, this argument appears to be in breach of the User Agreement as an account cannot be shared. If your employer has the password to an account then they would be able to access it and, although this would be in breach of the User Agreement, they could download the connections (which is a facility available in LinkedIn).

(2) Who owns the connections?

The position of LinkedIn connections is not so straight-forward.

Arguably, if the connections were made during the course of your employment and created for the benefit of your employer and accessed through your employer’s IT system, then they are the property of your employer. However, if a LinkedIn account belongs to you then your employer cannot access your connections under the User Agreement. Generally, the connections that were made outside the course of your employment would belong to you.

LinkedIn connections could be viewed, depending on the nature of your role and your employer’s business, as ‘confidential information’. Generally, the law provides that where confidential information is obtained in circumstances that indicate an obligation of confidentiality, any unauthorised use of the information may give rise to a claim for an injunction and/or damages for breach of contract. This would be the case in the absence of any express provision relating to LinkedIn connections. However, this is unlikely to be something which the courts would uphold, given that connections’ details are publicly available on LinkedIn. Courts are likely to restrict this type of protection to more traditional confidential information or genuine trade secrets.

Some practitioners claim that employers could argue that LinkedIn connections made by you during the course of your employment amounts to a database which, if used without authorisation, would infringe on your employer’s right as the owner of the database, relying on the Copyright and Rights in Databases Regulations 1997. This is certainly an argument, but a court would need to be convinced that your account was created for a specific purpose and did not contain connections that were personal to you. In the absence of written evidence, this could prove difficult.

(3) What can an employer do to protect the connections you have made?

Arguably an employer’s best protection in relation to LinkedIn connections, would be to include express written provisions in an employment contract or staff handbook. A common practice these days is to include a warranty in an employment contract, which states that you acknowledge all LinkedIn connections made during the course of your employment are regarded as the property of your employer and you will be required to delete such connections on the termination of your employment. However, depending on how widely those provisions have been drawn will depend on how enforceable they may be.

In the absence of any express provisions relating to LinkedIn connections and those connections not being viewed as confidential information, would your employer be able to rely on post-termination restrictive covenants to prevent you from contacting your connections after your employment ended with your employer? The courts have decided that a former employee’s LinkedIn announcement that they had a new role could not be considered an attempt to solicit their former employer’s customers, many of whom the former employee was connected to on LinkedIn.

3 things you need to know about flexible working requests

Tue, 31 Jan 2023 17:22:31 GMT

3 things you need to know about flexible working requests

The Flexible Working Regulations 2014 amended the Employment Rights Act 1996 and govern statutory flexible working requests. The statutory process is supplemented by the Statutory Code of Practice: Handling in a reasonable manner requests to work flexibly.

(1) Who can make a flexible working request?

Only employees have a statutory right to request flexible working.

The right does not apply to self-employed contractors, consultants or agency workers. There is no automatic right to be granted flexible working.

To be eligible to make a statutory request flexible working, you must:

be an employee
have 26 weeks’ continuous employment at the date the request is made
not have made a request in the previous 12 months.

(2) What are the requirements for making a valid flexible working request?

A statutory request for flexible working must:

be in writing
be dated
state that it is a statutory request
specify the change that you are seeking and when you wish the change to take effect
explain what effect, if any, you think the change will have on your employer and how any such effect could be dealt with
state whether you have previously made a statutory request for flexible working to your employer and, if so, when.

(3) How should an employer deal with a flexible working request?

On receipt of a flexible working request under the statutory process, your employer must:

deal with the request in a reasonable manner
hold a meeting with you to discuss the request
allow you to be accompanied to the meeting
allow you the opportunity to appeal its decision
notify you of its decision, including any appeal within 3 months of the request (unless otherwise agreed with you).

Your employer can only refuse your request for flexible working on one or more of the statutory grounds:

the burden of additional costs
detrimental effect on ability to meet customer demand
inability to reorganise work among existing staff
inability to recruit additional staff
detrimental impact on quality
detrimental impact on performance
insufficiency of work during the periods the employee proposes to work
planned structural changes.

If your employer does not act reasonably in dealing with your flexible working request, you make have grounds to bring a claim for constructive unfair dismissal . You should seek legal advice before taking any action as soon as possible.

Comment

On 5 December 2022, the government announced that the right to request flexible working will be extended to all employees from day one of employment. This is a part of a package of measures contained in the Employment Relations (Flexible Working) Bill on 15 June 2022.

See our blog - 3 things you need to know about changes to employment law 2024

3 things you need to know about dismissals for SOSR

Sun, 29 Jan 2023 16:55:42 GMT

3 things you need to know about dismissals for some other substantial reason

Your employer cannot simply dismiss you just because it feels like it. There must be a genuine reason. Section 98 of the Employment Rights Act 1996, provides 5 potentially fair reasons for dismissal, which are:

conduct
capability (eg skill or health) or qualifications (eg technical or professional)
redundancy
that an employee could not continue to work in the position which s/he held without contravention (either on his/her part or on that of the employer) of a duty or restriction imposed by or under an enactment
some other substantial reason ( SOSR ) of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(1) What does some other substantial reason mean?

There is no statutory definition or statutory guidance relating to SOSR.

Case law suggests the term ‘substantial’ the reason must not be either frivolous or insignificant.

SOSR is essentially a catch-all category designed to allow your employer to terminate your employment when no other potentially fair reasons apply.

The SOSR depends on the facts and circumstances of each case.

Fairness is not the only consideration. Your employer must also act reasonably and follow an appropriate procedure before dismissing you for SOSR. Alternatives to dismissal must be considered eg moving you to a different location or department before dismissal. However, this will depend on the size of your employer and the resources it has.

When your employer is considering dismissal for SOSR, your employer must ensure that the reason for dismissal is substantial ie it has a considerable impact on the business. In other words, your employer has no choice but to dismiss you.

(2) What is the test for fairness for determining if a dismissal for some other substantial reason is fair?

There is a 2-stage test that employment tribunals use for determining whether a dismissal is fair for SOSR.

Stage 1

Your employer has the burden of proof in showing that SOSR is the sole or principal reason for the dismissal. Here the employer only needs to establish that SOSR could justify the dismissal of an employee holding the role in question rather than necessarily showing that it actually did justify the dismissal ( Willow Oak Developments Ltd v Silverwoo d). A tribunal must not consider the justification, reasonableness or fairness of dismissing for SOSR at stage 1.

Stage 2

Your employer must then show that the decision to dismiss for SOSR was reasonable in all the circumstances (including the size and administrative resources it has). This will be determined in accordance with equity and the substantial merits of the case. Here the burden of proof is neutral. Therefore, a tribunal will need to investigate the reasonableness of the dismissal, but the onus is neither on the employer to prove it was fair, nor you to prove that it was not ( Boys and Girls Welfare Society v McDonald ).

A fair SOSR dismissal process would usually involve:

an investigation of the background leading to the potential dismissal
exploring every possible option before deciding to dismiss you. This will depend entirely on the reason for dismissal but could include giving you warnings or exploring your working environment could be adapted
consult with you about the potential dismissal and allow you to make representations about the decision before it has been finalised
make sure that you are aware you have the opportunity to be accompanied by a colleague or trade union representative to any meetings relating to the potential dismissal.

(3) What circumstances have tribunals found to be a dismissal for some other substantial reason?

Employment tribunals have found a dismissal to be fair for SOSR, in the situations (among others) as follows:

business reorganisation (that does not fall within the statutory definition of redundancy)
refusal to accept a change in terms and conditions of employment
conflict of interest with an employer’s legitimate business interests
personality clashes or irreconcilable difference between employees (where an employer has taken steps to resolve the problem)
pressure from third parties (eg from a customer, client or supplier)
reputational risk
employed couples (under a joint employment contract)
a breakdown in trust and confidence
expiry of a fixed term contract (provided this is the real reason).

Comment

SOSR dismissals are not straight-forward and specialist employment law advice should be sought before you take any action.

3 things you need to know about disciplinary action for misconduct

Sat, 28 Jan 2023 16:44:13 GMT

3 things you need to know about disciplinary action for misconduct

If you have been subjected to disciplinary action, including dismissal for misconduct this may be unfair depending on the facts and the process followed by your employer.

(1) What must your employer do before taking the decision to dismiss you?

Your employer must carry out a reasonable investigation of potential disciplinary matters without undue delay to establish the facts of the case. In some instances, this will require an investigatory meeting with you before proceeding to any disciplinary meeting.

In the case of British Home Stores v Burchell , a 3-stage test was formulated for determining whether an investigation was reasonable:

your employer must establish the fact of its belief and did believe it
your employer must have reasonable grounds for its belief
at the stage your employer formed its belief it must have carried out as much investigation as was reasonable in all the circumstances of the case.

In deciding whether your employer’s investigation is adequate, your employer should consider the following:

whether evidence has been taken from all potentially relevant witnesses, including those who could provide evidence on your behalf, and properly considered
whether all other potentially relevant evidence, including documentary evidence, has been obtained and properly considered
whether the investigating officer was sufficiently independent
if appropriate, whether the evidence has been tested on the balance of probabilities.

You should be notified in writing and provided with:

the specific allegation(s) of misconduct you need to answer
sufficient information about the alleged misconduct to enable you to answer the case (it would normally be appropriate to provide copies of any written evidence, which may include any witness statements)
an indication of the possible outcome of the disciplinary meeting, particularly where it is possible you could be dismissed
the time and venue for the disciplinary meeting
your right to be accompanied at the meeting.

The meeting should be held without unreasonable delay whilst allowing you reasonable time to prepare their case.

At the meeting, you should be allowed to:

set out your case and answer the allegation(s)
ask questions, present evidence and call relevant witnesses
challenge any information provided by witnesses against you.

Where you or your employer intends to call witnesses at the meeting, advance notice should be given to the other.

(2) What decision can your employer take after a disciplinary meeting?

After the disciplinary meeting, if your employer concludes you have committed misconduct it is common practice to provide you with:

a written warning for a first act of misconduct
a final written warning for a further act of misconduct within the currency of a written warning or a more serious act of misconduct
dismissal for a further act of misconduct within the currency of a written warning or a more serious act of misconduct.

A decision to dismiss should only be taken by a manager who has the authority to do so. You should be informed of the reason(s) for the dismissal and the date your employment will end.

Some acts of misconduct are referred to as ‘gross misconduct’, which are so serious or have such serious consequences as to warrant dismissal without any previous warning or any period of notice.

Your employer’s disciplinary rules should ideally give examples of acts, which are considered to be gross misconduct (eg theft, fraud, physical violence).

If you are persistently unable or unwilling to attend a disciplinary meeting without good cause, your employer can make a decision on the evidence available in your absence.

(3) What if you do not agree with your employer’s decision to dismiss you?

If you believe that the disciplinary action taken against you is wrong or unjust you should appeal against the decision. Appeals should be heard without unreasonable delay. Your employer should confirm in writing the time and venue for the appeal meeting and the right to be accompanied at the meeting.

You will normally be asked for the grounds of your appeal in writing before the appeal meeting.

The appeal should be dealt with impartially and wherever possible, by a manager who has not previously been involved in the case.

After the appeal meeting, your employer should inform you of its decision as soon as possible in writing.

Comment

There is no ‘one size fits all’ approach to disciplinary action for misconduct. Each case will be decided on its own facts. That said, the more transparent and balanced the disciplinary process, the more likely the disciplinary action will be fair.

Before taking the decision to bring a claim for unfair dismissal, you should take legal advice.

3 things you need to know about holiday pay

Thu, 26 Jan 2023 15:48:02 GMT

3 things you need to know about holiday pay

You are entitled to statutory paid holiday if you are a ‘worker’ or an ‘employee’.

A worker is someone that generally works casually and decides whether to do the work offered by an employer. Whereas an employee is someone that works on a permanent basis and cannot refuse to work the hours and days agreed.

(1) How much holiday pay are you entitled to receive?

Holiday pay is governed by the Working Time Regulations 1998 ( WTR ) or your employment contract.

The minimum amount of paid holiday you are entitled to receive is 5.6 weeks in each leave year ( Statutory Entitlement ). The Statutory Entitlement includes bank and public holidays, which is typically 8 in England and Wales.

Your entitlement to paid holidays could be higher than the Statutory Entitlement under your employment contract but will include your Statutory Entitlement.

The leave year is determined by your employer but typically this could be from 1 January to 31 December.

(2) How do you calculate holiday pay?

A day’s holiday pay is worked out according to the kind of hours you work and how you are paid for the hours (eg full-time, part-time, term-time and casual hours).

The most commonly used day rate calculation method is 260 working days per year. This method is based on a standard 5-day working week. A day rate on this method is calculated by dividing your annual salary by 260. There are also 261 and 253 variations, which take into account leap years, and bank and public holidays respectively.

Another common method is 365 days per year. This day rate is calculated by dividing your annual salary by 365. There is also the 366 version for leap years.

Some employers may use the calendar day method. This is different from the previous methods, as the day rate may vary each period. To work out a day rate on the calendar method, your salary for the period is divided by the number of calendar days in the period. For monthly payrolls, this means the day rate will change depending on the number of days in that month.

If you work irregular hours, you will need to calculate your average hourly rate (including commission). You will then need to take the average rate over the last 52 weeks. If you have worked for less than 52 weeks, use the average pay rate for the full weeks you have worked.

Holiday pay should be paid for the time when annual leave is taken. An employer cannot include an amount for holiday pay in the hourly rate (known as ‘rolled-up holiday pay’).

You can use the holiday calculator to work out how much leave you should get click here .

(3) Can you choose when to take your holiday?

Written rules

Your employer is allowed to make rules as to when holiday can and cannot be taken.

Your employer may have a policy that sets out how you request holidays and the rules around taking holidays or this may be set out in your employment contract. Alternatively, if your employer recognises a trade union, the rules might be set out in a collective agreement with them.

Your employer may also stipulate days when holiday must be taken (eg between Christmas and New Year as the business is closed).

No written rules

Where the rules for requesting holidays are not set out in a contract or collective agreement, the WTR provides what notice a worker must give.

You should request holiday by informing your employer which days you wish to take off. The number of days’ notice given by you must be at least twice the number of days holiday being requested (eg on Monday, you request to take Friday off as holiday. Therefore, you must give twice as much notice ie 2 days. The notice must be given before the holiday is due to be taken, so it must be given before Wednesday).

However, your employer can give notice to you refusing your request to take holiday. The notice your employer must give you is at least the same amount of notice as the number of days being refused (eg if you want to take 1 weeks’ holiday, you need to give 2 weeks’ notice, but you employer can refuse this by giving you at least 1 weeks’ notice).

Forced holiday

If your employer wants you to take holiday on a certain date, like workers requesting holiday, your employer must give your twice the amount of notice as the holiday requested (eg your employer decides to close for 2 weeks over the Christmas period. Therefore, your employer must give her at least 4 weeks’ notice prior to the proposed closure).

Comment

The government has launched a consultation on calculating holiday entitlement for part-year and irregular-hours workers to introduce a reference period to ensure that holiday entitlement and pay is directly proportionate to the time spent working. The consultation is a response to the Supreme Court decision in Harpur Trust v Brazel , which held that holiday entitlement under the WTR for permanent part-year workers should not be pro-rated to that of a full-time worker.

3 things you need to know about deposit orders in employment tribunals

Mon, 23 Jan 2023 16:13:55 GMT

3 things you need to know about deposit orders in employment tribunal claims

If you are involved in an employment tribunal claim, especially if you are unrepresented, an employment tribunal may have put you on notice that your employer or ex-employer has applied for a deposit order and there will be a preliminary hearing to consider the application.

(1) What is a deposit order?

Employment tribunals are governed by the Employment Tribunals Act 1996 and the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013. Deposit orders are specifically governed by rule 39 of the Employment Tribunal Rules of Procedure 2013, which is a schedule to the Regulations.

A deposit order is something an employment judge during employment tribunal proceedings can make requiring you to pay a sum of money to the tribunal, as a condition for continuing to pursue any specific allegation or argument set out in your claim form.

In deciding whether to make a deposit order, an employment judge will consider whether any specific allegation or argument in your claim has ‘little reasonable prospect of success’. If so, a deposit order will be made.

If a deposit order is made against you, the employment judge will set out the reasons for doing this in an order, which will be sealed and will not be considered by a subsequent tribunal at the final hearing.

(2) How much will you have to pay if a deposit order is made?

An employment judge can order you to pay £1000 for each specific allegation or argument being pursued in your claim that the judge considers has ‘little reasonable prospect of success’ by a specified date.

Before deciding on the amount of the deposit to be paid by you, an employment judge must make reasonable enquiries into your ability to pay the deposit. The purpose of the deposit order is not to make it difficult for you to find the sum payable or to make it difficult to access justice or to ensure your claim is struck out.

If you fail to pay the deposit by the specified date, the specific allegation or argument to which the deposit order relates will be struck out.

You can challenge a deposit order on the ground that it would be in the interests of justice to do so and apply for it to be varied, suspended or set aside.

(3) What happens if you pay a deposit and lose your employment tribunal claim?

If you pay the deposit in accordance with the deposit order, there may be implications for you at a final hearing where an employment tribunal rejects or dismisses finds the specific allegation or argument that is the subject of the deposit order. In such circumstances, unless the contrary is shown, you will be treated as having acted unreasonably in pursuing that specific allegation or argument, should your employer or ex-employer apply to the tribunal for a costs order or preparation time order.

If a costs order or preparation time order is made against you, the deposit will be paid to your employer or ex-employer (and any other party to the claim) as the employment tribunal orders.

If a tribunal does not make a costs order or preparation time order, the deposit will be refunded to you.

If you have been found by an employment tribunal to have acted unreasonably in pursuing a specific allegation or argument following a deposit order, it will not automatically follow that a costs order or preparation time order will be made against you. Even where unreasonable conduct has been found, the tribunal has a discretion as to whether or not costs should be awarded, and to what amount, and must consider all relevant circumstances in exercising that discretion ( Oni v UNISON )

3 things you need to know about protected conversations

Fri, 16 Dec 2022 16:23:45 GMT

3 things you need to know about protected conversations

You may have been asked by your employer for a protected conversation. This may be unexpected.

(1) What is a protected conversation?

Your employer can have an “off the record” conversation with you regarding the termination of your employment in the knowledge that such a conversation is in certain circumstances “protected”.

Any offer your employer makes to you relating to the termination of your employment will normally be recorded in a settlement agreemen t . The pre-termination negotiations and terms of the settlement are protected in so far as they cannot be used by you in any subsequent employment tribunal claim for unfair dismissal under sections 111A of the Employment Rights Act 1996 ( ERA ).

(2) What claims will not be covered by a protected conversation?

Certain protected conversations are not covered by section 111A of the ERA and these relate to complaints of:

claims that relate to an automatic unfair reason for dismissal, such as, whistleblowing, union membership or asserting a statutory right
claims made on grounds other than unfair dismissal (eg discrimination, harassment, victimisation or other behaviour prohibited by the Equality Act 2010)
claims relating to breach of contract or wrongful dismissal.

Therefore, if your claim relates to dismissal it is essential that is properly pleaded to show that it is not one of ‘ordinary’ unfair dismissal but ‘automatically’ unfair dismissal. If you fail to do this, you will run the risk that a tribunal will exclude all matters relating to pre-termination negotiations. However, if there is an ongoing dispute between you and your employer then certain conversations may still be covered by what is called the “without prejudice” rule.

(3) When will a protected conversation lose its protection?

The Acas Code of Practice – Settlement Agreements provides a non-exhaustive list of improper behaviour, which means that protected conversation will lose its protection and includes:

all forms of harassment, bullying and intimidation, including the use of offensive words or aggressive behaviour
physical assault or the threat of physical assault and other criminal behaviour
all forms of victimisation (ie have done a protected act in relation to the Equality Act 2010)
discrimination because of age, sex, race, disability, sexual orientation, religion or belief, transgender, pregnancy and maternity and marriage or civil partnership
putting undue pressure on a party (eg an employer saying before any form of disciplinary process has begun that if a settlement proposal is rejected then the employee will be dismissed).

If there is improper behaviour by your employer, then anything said or done as part of the pre-termination negotiations may be admissible as evidence, providing the tribunal considers it just to do so. In the case of Harrison v Aryman Limited, where there is a dispute about what was discussed during a protected conversation, a tribunal must be satisfied that whatever behaviour did occur meets the legal concept of improper behaviour. If so, then a tribunal will consider the extent, if any, to which it is just to permit reference to the pre-termination negotiations to be admitted.

For example, if you bring a claim for constructive unfair dismissal and seek to rely on your employer’s conduct, including pre-termination negotiations, to show that this amounted to a breach of the implied term of trust and confidence, it is essential that this conduct is clearly pleaded, and the tribunal is aware of this before deciding to either admit or to exclude it.

Comment

Whether conduct during a protected conversation will amount to improper behaviour will not always be obvious or what appears to be obvious may not be admissible. Therefore, it is essential proper legal advice is sought before embarking on a tribunal claim.

3 things you need to know about whistleblowing

Fri, 09 Dec 2022 17:21:14 GMT

3 things you need to know about whistleblowing

You may have experienced or witnesses wrongdoing at work and are conscious of reporting this ("blowing the whistle") due to possible reprisals.

(1) What does whistleblowing mean?

Essentially, you will “blow the whistle” when you disclose information, which relates to suspected wrongdoing or dangers at work in order to attract statutory protection (referred to as a 'protected disclosure'). This may include:

criminal activity
miscarriages of justice
danger to health and safety
damage to the environment
failure to comply with any legal obligation or regulatory requirement
bribery, financial fraud or mismanagement.

The information disclosed must be in the public interest and serious and not merely a trivial matter.

Disclosure of information by a whistleblower normally relates to something that is not personal to you but will impact others (eg your colleagues, your employer or a third party). Unlike a complaint, which normally relates to you personally. This could be unfair treatment by a colleague or a breach of their contract of employment. Therefore, the individual has an interest in the outcome of the complaint. Such a complaint would normally be in the form of a grievance to your employer.

Whistleblowing concerns can relate to the conduct of your managers or colleagues, but it can also relate to the actions of your employer (eg a policy decision) or a third party (eg a customer, supplier or service provider).

(2) What protection does the law provide to whistleblowers?

Under the Employment Rights Act 1996 if an employee “blows the whistle” they will receive protection from:

being dismissed or
victimised (ie by being subjected to a detriment) because of their whistleblowing.

This protection applies from day-1 of your employment or engagement with your employer.

A whistleblowing dismissal is automatically unfair and you do not need 2 years’ continuity of service to bring an employment tribunal claim . Compensation is also uncapped.

In relation to victimisation, a tribunal can award compensation for financial loss and injury to feelings (in the same way as discrimination claims).

You will lose any statutory protection if they commit an offence when making the disclosure.

The public interest test can be satisfied even where the basis of the disclosure is wrong or there was no public interest in the disclosure being made, provided that the individual’s belief that the disclosure was made in the public interest was objectively reasonable.

(3) How should the disclosure be made?

To gain protection, the disclosure would normally be made to:

your employer
some other responsible person where the individual reasonably believes the disclosure does not relate to the employer
to a prescribed person defined by statute and the individual reasonably believes that the information given to that person is substantially true. However, protected disclosures are not limited to these three particular types.

Comment

Whistleblowers at work will receive statutory protection from being victimised or dismissed provided that the information they disclose meets certain criteria. Whether an individual disclosure meets those criteria will always be a question of fact and legal advice should always be taken before any action is commenced.