Disability Law Service

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Accessing Advice

Employment

Disability Law Service is able to provide our service users advice and assistance with matters relating to problems at work. The typical matters we deal with are as follows:

  1. Terms and conditions of employment
  2. Pay and protection of wages
  3. Wrongful Dismissal
  4. Unfair Dismissal
  5. Constructive Dismissal
  6. Redundancy
  7. TUPE
  8. Equality and Discrimination (please click here to read the Discrimination section)

If you live in London and have an employment discrimination enquiry please use our online form to tell us about your discrimination issue click here to link to the form.

Terms and conditions of employment:

All employees have a contract of employment. Verbal contracts have the same status as written contracts, but are harder to prove.

Contract terms may be express, implied or inserted by statute. Express terms are written or verbally agreed.Where there is no express term, an implied term may fill the gap. Terms may be implied because they are obvious or by looking at what has happened in practice, but not just because they are reasonable.

Also, general implied terms apply in most employment contracts, eg the obligation not to destroy trust and confidence.

Under the Employment Rights Act 1996 s1, certain contract terms must be put in writing. A written statement of these particulars does not necessarily constitute the contract in itself, but often amounts to strong evidence of what the contract is.

Contract terms are often varied during employment. Contract changes can only be by agreement. Where the employer tries to enforce changes to the contract without agreement, this is called “unilateral variation”.

An employee must respond quickly where the employer tries to impose contract changes unilaterally; otherwise s/he may be taken to have agreed the changes by inaction. There are various options for an employee in this situation, but most of them risk dismissal.

Under the Data Protection Act 1998, workers have access to their own personal data and can seek corrections of inaccurate information held on them.

Pay and Protection of wages:

Employers are obliged to pay wages to workers who are willing and able to work their contractual hours, even if the workers are not required to do so.

Different contract arrangements can be made so that employers are not obliged to offer paid hourly work on a regular basis, eg casual work and zero hours contracts.
Employers are not allowed to make deductions from wages unless there is a statutory requirement to make deductions (tax and national insurance), where it is a term of the employment contract, or where the worker has agreed in writing in advance to the deduction.

Any deduction made without such authority can be recovered by claiming in the Employment Tribunal under Part II of the Employment Rights Act 1996. This is known as a claim for “unlawful” or “unauthorised” deduction of wages.

The majority of workers are entitled to the national minimum wage. Failure to pay the minimum wage will entitle the worker to recover the shortfall.

Under the Working Time Regulations 1998, workers are entitled to limits on the hours worked and rest breaks. They are also entitled to 5.6 weeks paid annual leave.

When off sick, most workers are entitled to statutory sick pay (SSP). They will not be entitled to full pay unless they have such a right under their contract.

Workers are entitled to receive itemised pay statements (usually payslips) at or before each pay day.

Wrongful Dismissal:

Unlike unfair dismissal which is a statutory right, wrongful dismissal is a contractual claim. It arises when an employer terminates the employment contract contrary to the terms of the contract. For instance, the failure to give proper notice, or breach of another contractual term such as failing to pay contractual bonus.

Unfair Dismissal:

Only employees can claim unfair dismissal. To decide whether a worker is an employee, the label and tax position are not conclusive. The key tests are mutual obligation to give and undertake work, and control by the employer.

Agency workers may or may not be employees of either the agency or the client organisation.

Employees must also have at least two years’ service.

A dismissal may be substantively unfair (why the employee was dismissed) or procedurally unfair (how the employee was dismissed).

There are a large and growing number of grounds on which dismissal is automatically unfair (eg pregnancy and maternity; or seeking other family and domestic entitlements; for asserting one’s statutory right etc). Most but not all of these grounds do not require any minimum service.

In respect of many of these grounds, it is unlawful to subject a worker (as well as an employee) to a detriment other than or in addition to dismissal.

Many of the grounds for automatic unfair dismissal or detriment are to ensure employees/workers are not victimised for asserting their rights, eg to the minimum wage, under the working time regulations or for payslips.

Types of unfair dismissal: Capability or qualification dismissals; Conduct Dismissals; Redundancy Dismissals; Dismissals for some other substantive reason.

Constructive Dismissal:

Constructive dismissal occurs when an employee resigns because of a fundamental or repudiatory breach of the employment contract by the employer. The employee will also need to prove that the constructive dismissal was unfair and satisfy the eligibility criteria of being employed for 2 years or more. The employer must have broken the contract and it is not enough that s/he simply acted unreasonably. Constructive dismissal is usually difficult to win because of the number of pitfalls it has. For example, the time of resignation and the contents of the resignation letter is very important. Therefore an employee should be very careful about resigning without seeking further legal advice from a Solicitor.

Redundancy:

A Redundancy situation occurs when there is a:


- Closure of the business as a whole;
- Closure of the particular workplace where the employee was employed and;
- Reduction in the size of the workforce.

Even where there is a genuine redundancy situation the employee may have been unfairly dismissed.

A redundancy dismissal may be unfair if there has been inadequate consultation by the employer or unfair selection for dismissal.

Length of service is a fairly common selection criterion but can be discriminatory. Larger will be expected to have more sophisticated selection criteria than small enterprises and they should be objective rather than subjective.

The employer is expected to offer any alternate availableemployment which the employee is capable of doing.

TUPE (The Transfer of Undertakings Regulations):

The TUPE Regs protect employees on transfer of the business in which they are employed.

Many situations are now covered by the TUPE Regs and a purposive approach should be adopted. The mechanism of the transfer does not matter, provided there is a change of legal person responsible for running the undertaking who acts as employer.

The TUPE Regs cover business transfers, ie a transfer of an economic entity which retains its identity after transfer.

It also now explicitly covers service provision changes, ie contracting out of services; services reverting in-house; and the transfer of the service between two successive contractors.
Protected employees are those who are employed immediately before the transfer or who are dismissed in advance but in connection with the transfer, unless their dismissal was for an economic, technical or organisational (ETO) reason entailing changes in the workforce.

It is automatically unfair to dismiss 9or constructively dismiss) an employee in connection with the transfer except for an ETO reason entailing changes in the workforce, in which case the ordinary test of fairness will apply. The normal eligibility rules for claiming unfair dismissal apply to both situations.

Where an employee is covered, rights, liabilities and contractual terms transfer, eg wages owed, liability for previous discriminatory acts and continuous service, but the pension situation is complex.

Discrimination law (with no minimum service requirement) will apply if the new employer refuses to take on employees or treats them less favourably, eg on grounds of disability or race.

If any of the above applies to you require further assistance, please contact our Legal Access on 020 77919800 for an appointment for an appointment with our Employment & Discrimination Team.