An Employer is not under an obligation to make a payment for wages unless the Employee turns up at the contractual start time, save where there is a contractual entitlement to be paid in these circumstances. (the terms of the contract will need to be scrutinized in such a case). This is the case irrespective of the reason of why the Employee is late, for example, perhaps because train or bus was late.
A worker may bring a claim in the Employment Tribunals to recover the amount of the unlawful deduction. If the Employer is ordered to pay an unlawful deduction by an Employment Tribunal, the Employer will not be able to recover the amounts through the Employment Tribunals or the County Court system.
An Employee with at least one year’s continuous service is entitled to receive written reasons for their dismissal if they ask for this. A request must be made within three months of the effective date of termination.
Compensation will be awarded for losses arising from the act of discrimination. An important part of this figure usually consists of lost earnings. A calculation is made of losses up to the date of the tribunal and may be projected into the future depending on how long the tribunal believes losses will continue. The assessment of losses will take into account earnings from a new position which will be deducted from the award. If the Employee finds alternative work paying the same or more, losses will stop from that point.
In discrimination cases an award for injury to feelings may be made. This will fall into one of three cases depending on the severity and length of time of the suffering. Most cases will fall in the lower band of below £5000, more severe cases will fall into the middle range of £5000 to £15000 and the most severe over £15000. In some cases part of this award will be made up of a separate award for personal injury.
There is no upper limit on the award of compensation in a case of unlawful discrimination.
The usual time limit is three months from the act complained of, or the last in a continuing series of acts. This may be extended in exceptional circumstances such as where a grievance procedure is still continuing at the time of the expiry of the three month time limit.
To establish unlawful discrimination the person complaining must first establish that there are primary facts from which discrimination could be inferred. It will not always be blatant since direct evidence (e.g. an email stating “we should not employ this young woman or before you know it she will get pregnant and want time off”) is rare. Once such facts can be shown the onus will then be on the Employer to give a non-discriminatory reason for the difference in treatment.
Whether there is a genuine redundancy a dismissal of an Employee is potentially fair. However, the Employer would normally be expected to consult with the Employee individually, to follow a fair selection process and consider whether there is any suitable alternative employment for the individual before a decision is made to dismiss. Where there are twenty or more Employees there has to be consultation with Employee representatives as well as notification of the Secretary of State.
Constructive dismissal occurs when the Employer commits a fundamental breach of an employee's contract and the Employee resigns as a result without undue delay. An Employee should submit a grievance before making a claim to the tribunal but this is not always necessary. It is possible that the conduct complained of is of an unlawful nature under the discrimination legislation.
This could mean an additional claim is made in the employment tribunal.
In the case of long-term ill health there will come a time when it is reasonable for the Employer to consider dismissal. Before dismissing, the Employer would be expected to speak to the Employee about the situation and ascertain the likelihood of a return to work. It will normally be appropriate to obtain a medical report to establish a prognosis. In the event that return is unlikely in the foreseeable future or it is unclear, that may make it fair to dismiss. In a case in which the Employee falls within the definition of the Equality Act 2010 consideration will have to be made as to whether reasonable adjustments can be made to assist the Employee's return before a final decision on dismissal is made. In the case of frequent short term absences, a fair dismissal may be possible if the attendance falls well below the required standard for attendance. It would be expected that the Employee has been given the opportunity to improve and gone through a fair procedure such as following the ACAS procedure.
In the majority of cases it will be unlawful to dismiss an Employee for misconduct without prior warning. The exception to this is where a very serious offence amounting to gross misconduct such as theft, violence or fraud has been committed. An employer should ensure a proper investigation of the allegation, and a formal hearing convened. any decision should inform the employee/ex-employee with a right to appeal against any decision to dismiss. Employers will be expected to follow their own disciplinary procedure (i.e. in their staff handbook) and also the requirements of the acas disciplinary and dismissal procedure.
An Employer must provide written particulars of employment by the end of the second month of employment. An employer must provide a minimum set of information to the employee, i.e. Place of work, employee's job title, working hours, rate of pay/salary, Employer’s address etc.
Generally, both parties to a contract have to agree to a change. Some changes are positive, for instance a pay rise and there will be no written agreement to this but the parties will be seen to have accepted it by their actions - the Employer paying the higher pay and the Employee accepting it.
If there are detrimental changes to the Contract of Employment for an employee the Employer should seek the Employee’s consent. The fact that the Employee has not protested will not in all cases mean that the change is accepted, especially where it is a change having little or immediate impact on the Employee. In some circumstances such as where there is a transfer of a business there are special restrictions on the ability of the Employer to change the Contract of Employment of the Employee if the reason is related to the transfer.
There is a right of an Employee to object to being transferred. Save in exceptional cases, the objection to a transfer will restrict the rights of the Employee to take a claim against the outgoing or new Employer
The effect of TUPE is to transfer all the rights, duties and obligations of Employees under or in relation to their Contracts of Employment. This means that the contract terms will automatically remain the same. There is one exception to this which is pension rights where protection is provided but this is limited.
There is a requirement for the Employer to inform the Employees of the legal, social and economic implications of a TUPE transfer. If the Employer intends to take any measures in respect of any Employee there must also be consultation. The consultation must be with Employee representatives. There are special rules concerning the validity of representatives.
The general position is that a dismissal for a reason related to a TUPE transfer is automatically unfair. This means that an Employee who has the required qualifying service of one year to claim unfair dismissal will be able to do so successfully if the reason is related to the transfer. There is a potentially fair basis for a dismissal where there is an economic, technical or organisational reason which requires a change in the workforce. All the circumstances and the procedure followed would also have to be fair.
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