EMPLOYMENT

Here at Fentimans Solicitors we have the solution for all types of employment concerns such as un-fair dismissal, redundancy, maternity rights, deductions from pay, working hours, holidays, discrimination, wrongful dismissal, compromise agreements.

The law in this area is becoming evermore complex and far reaching, which makes the need for urgent and accurate advice essential. with the raising of the limit on compensation which an Employment Tribunal can award for unfair dismissal to £60,600, the consequences of a mistake can be very serious.

We are pleased to be in a position to offer initial advice by telephone and follow that up with an urgent meeting if necessary. Topics that may be relevant include; unfair dismissal, redundancy, maternity rights, deductions from pay, working hours and holidays, race, sex, disability, religious and age discrimination, wrongful dismissal and compromise agreements.

We also advise on preventative measures such as the contract of employment or service agreement, a grievance procedure, a disciplinary procedure, a fair redundancy procedure, working time regulations and record keeping.

For a free initial telephone assessment of the details associated with your situation, please complete the form below and submit it to us. Alternatively please call 01564 731660 during office hours for instant, free advice.

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UNFAIR DISMISSAL

Qualifying period: normally 52 weeks continuous employment unless the main reason for the dismissal was for a Union related reason, assertion of a statutory right, health and safety related due to pregnancy, child birth or maternity and parental leave, working time, national minimum wage, whistle blowing and various other reasons.

If an employee is protected from unfair dismissal then the dismissal must be for a fair reason. Some reasons are automatically unfair e.g. whistle blowing.

There must also be a fair procedure which must be used before making a decision to dismiss.

"Constructive unfair dismissal" arises where the employee resigns rather than being dismissed, because of a serious breach of contract on the part of the employer.

Claims for unfair dismissal must usually be filed at the Employment Tribunal within here months of the effective date of dismissal (usually but not always the last day the employee worked).

An employee who is unfairly dismissed can be awarded a basic award which relates to their age and length of service and a compensatory award which relates to losses, including loss of earnings arising from the dismissal.

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REDUNDANCY

Qualifying period: normally two years continuous employment.

Paid to employees as compensation for losing their job as a result of redundancy.

Redundancy means a dismissal wholly or mainly attributable to the fact that the employer has ceased or intends to cease to carry on the business for the purposes of which the employee was employed or to carry on that business in the place where the employee was employed. Redundancy also arises where the requirements of the business for employees to carry out work of a particular kind has ceased or diminished or is expected to cease or diminish.

Employees are entitled to be consulted about redundancy and warned that they are at risk of redundancy. The employer must adopt objective criteria when deciding who is to be made redundant.

The statutory entitlement to redundancy is based upon the age and length of service of the employee and his or her income, subject to a statutory maximum.

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MATERNITY RIGHTS

Who qualifies for statutory maternity pay (SMP)?

Any woman employee whose expected week of confinement (EWC) is on or after the 1st April 2007 provided she has served the appropriate notice on her employer no later than the end of the fifteenth week before the EWC. She must still be pregnant by the 11th week before the expected week of confinement and must have ceased work wholly or partly because of the pregnancy or confinement.
SMP is not conditional upon the employee remaining in employment or intending to return to work after confinement.

The maximum maternity pay period is 39 weeks.

SMP is liable to PAYE and National Insurance contributions.

She must give her employer at least 8 weeks' notice of her intention to return to work early or to extend her maternity leave. In consultation with her employer, she can return to work up to 10 days during maternity leave without affecting her entitlement to SMP. These are called "Keeping in touch Days"

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DEDUCTIONS FROM PAY

An employer may not make a deduction from a worker's wages unless:

  1. The deduction is authorized by statute; or
  2. The deduction is authorized by any relevant provision of the worker's contract; or
  3. The worker has previously signified in writing his agreement or consent to the deduction.

"Wages" means any sum payable to the worker in connection with his employment. This includes bonus, commission, and holiday pay. A deduction which is made to recover an overpayment of wages is not covered and neither is the deduction to recover an overpayment of expenses.

The Employment Rights Act 1996 limits the amount of deductions that can be made from the wages of workers in retail employment in respect of cash shortages or stock deficiencies to one tenth of the gross amount of the wages payable to the worker on that pay day.

An employee who has suffered deduction from his wages can present a complaint to an Employment Tribunal within three months from the date of deduction, or, if there has been a series of deductions, within three months of the last deduction.

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WORKING HOURS

The Working Time Regulations 1998 regulate the law concerning working time for employees. The Department of Trade and Industry publishes a guidance booklet called "Working Time Regulation".

The regulations provide for a maximum 48 hour working week although this is calculated by reference to an average of 48 hours for each seven days in a reference period. A reference period is normally 17 weeks although can be longer.

An employee can agree in writing that the rules will not apply to him. Such an agreement can either relate to a specific period or apply indefinitely but can be terminated by notice of not more than three months.

Night working - The regulations provide that a night worker's normal hours of work in any reference period are not to exceed an average of 8 hours for each 24 hours. Night workers are entitled to regular and free health assessment.

Rest breaks - The regulations provide that an adult employee is entitled to a daily rest period of not less than 11 consecutive hours in each 24 hour period during which he is working; an uninterrupted rest period of not less than 24 hours in each 7 day period during which he is working a rest break of at least 20 minutes where his day working time is more than six hours.

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HOLIDAYS

The Working Time Regulations 1998 provide that for each leave year (with a pro-rata provision applying in the first year of employment) an employee is entitled to at least 20 working days paid leave.

An employee may take the leave entitlement by giving notice to his employer of at least twice as long as the leave he proposes to take e.g. 2 weeks notice for one week's leave. An employer may require an employee to take leave at a certain time by similar notice or may require him not to take it at a certain time by giving the worker notice of at least the length of the leave in question.

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RACE AND SEX DISCRIMINATION

It is prohibited to discriminate on the grounds of sex or race. The relevant legislation is contained in the Sex Discrimination Act 1975 and the Race Relations Act 1976. Discrimination on the grounds of sex in respect of pay is dealt with by the Equal Pay Act 1970.

Employees are protected without the need for a qualifying period of service. Prospective employees applying for employment are also protected.

Other legislation protects against discrimination on grounds of sexual orientation, religion, disability and age.

"Sex discrimination" can include sexual harassment as well as less favourable treatment of a woman relating to the fact of her pregnancy or maternity leave.

There is an obligation on the employers to take measures to prevent discrimination. Employees can be liable for acts of discrimination by one employee against another.

Complaints of discrimination by aggrieved individuals are brought before an Employment Tribunal and must usually be made within three months of the particular act of discrimination complained about.

There is no limit to the amount of compensation that can be awarded for discrimination which is proved.

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WRONGFUL DISMISSAL

"Wrongful dismissal" is terminating employment in breach of the employee's Contract of Employment. This could include summary dismissal, where the facts do not support such a dismissal or failing to give the notice of dismissal required by the employee's Contract. It is not the same as unfair dismissal which means being dismissed for an unfair reason pursuant to the Employment Rights Act 1996.

Claims for wrongful dismissal can be brought either in the Employment Tribunal (up to a maximum claim value of £15,000.00) or in the County Court when there is no maximum claim value. A claim in the Employment Tribunal must normally be made within three months of the breach of contract. The normal six year time limit applies for claims brought in the County Court.

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COMPROMISE AGREEMENTS

These are usually used to record a settlement of an unfair dismissal or other employment related claim whereby the employee agrees not to pursue proceedings in the Employment Tribunal in return for receiving the benefits set out in the Compromise Agreement.

To be valid, a Compromise Agreement must be in writing, must relate to the complaint which is being compromised, the employee must have received independent legal advice from a relevant independent adviser at the terms and effect of the proposed agreement and in particular, its effect on his ability to pursue his rights before an Employment Tribunal, the relevant independent adviser must have insurance covering the risk of a claim by the employee in respect of any loss arising because of that advice, the agreement must identify the adviser and the agreement must also state that the regulations concerning Compromise Agreements under the Employment Rights Act 1996 are satisfied.

Usually, an employer will pay a fixed contribution towards the legal costs of the employee obtaining the independent advice.

As the approval of such agreements is usually an urgent matter, we are able to offer early appointments for clients requiring such advice.

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For further information please click here for our contact form

For free legal advice: info@fentimans.co.uk