Employment Law

In dismissing any employee, an employer must show the reason or reasons for dismissal fall under one of the categories set out in the Employment Rights Act 1996:

• The employee lacked capability or qualifications, in relation to the work they were employed to do.
• The dismissal was a result of the conduct of the employee E.G Dishonesty, poor attendance, failure to follow instructions, and which can amount to gross misconduct.
• There was genuine redundancy,
• The continuation of employment would contravene a statute E.G you are required to drive within your employment but you are banned due to speeding.
• Another substantial reason, which does not fall within the above categories, for this each case will be determined on its facts.

Unless an employer can prove either one or more or the above, the termination of employment will be deemed as unfair. Even if your employer can prove either one or more of the above conditions, it will be up to the employment tribunal to decide ‘in accordance with equity and the substantial merits of the case’ whether the dismissal was fair or unfair. The tribunal will decide whether the dismissal was in the ‘range of ‘reasonable responses’ of that employer.’

Your employer may have had grounds to dismiss you because of your performance or conduct, but that does not mean they had to take this step. If the tribunal decides that no ‘reasonable employer’ would have dismissed an employee in the same circumstances, then the dismissal will still be considered unfair.

Your employer cannot rely on new matter after your dismissal. The test is whether the dismissal was fair on the basis of what your employer knew at the time.

Should your employer have a justified reason for dismissing you, the dismissal will still be unfair if they have not followed the correct process. E.G They have not followed the appropriate consultation process in a redundancy situation. For dismissals involving misconduct, or performance, the process the employer should follow is largely based on the ACAS Code of Practice.

You must have been employed, continuously, for a period no less than 23 months and 3 weeks without a break. There is an exception where the continuous period does not apply, so you can bring a claim for unfair dismissal without having worked for any minimum time, this is called ‘automatic unfair dismissal.’

A dismissal is automatically unfair, with no qualifying period of service necessary in exceptional circumstances which include:

• If it was connected with a health and safety reason you became aware of;
• Where you have asserted a statutory employment right E.G paternity or maternity leave.
• Whistleblowing
• Participating in trade union activities

Constructive dismissal occurs where your employer has fundamentally breached your contract of employment in some way. You would need to have resigned from your employment as a result of the breach, and not be deemed to have accepted the breach in any way.

If you delay in taking steps to constructive dismissal, this may amount to an acceptance of the employer’s breach and an affirmation of your contract as a result a claim for constructive dismissal would be difficult to make.

Examples of a fundamental breach of employment:

• Forced cut in salary
• Forced change in role or duties without reasonable explanation
• Employers attitude seriously unreasonable resulting in inability to work
• Suspension without good reason
• Unsafe work environment
• Imposing an unreasonable or unfair disciplinary process

A claim for constructive dismissal will not be affected by resigning with or without a notice period. There are some exceptional circumstances which could affect the claim, these will depend on the facts of the case but are usually found where it is so difficult to continue a working relationship with the employer, working a notice period would be considered odd.

Although there is no requirement, it is best to state the reason for departure. This is to avoid the tribunal inferring that the reason for leaving was not the employers conduct – which is the basis of a constructive dismissal.

However, if the reason for departure is extremely embarrassing and you do not wish to state – a tribunal may understand this, it will depend on the facts of the case.

There should be some written evidence of your employers conduct prior to resignation, which is why a grievance is the appropriate way to proceed before you resign.

Gross misconduct can be any conduct which constitutes a serious breach of your employment. Examples include:

• Theft
• Dishonesty
• Violence at work
• Intoxication at work from drinks or drugs
• Fighting or other physical abuse
• Continual refusal to obey instructions from management
• Serious breach of health and safety rules

It is usually included within a contract of employment, what amounts to gross misconduct, although this isn’t necessary for action to be taken.

The approved process is set out in ACAS Code of Practice. If your employer does not follow this process and you lose your job, this could amount to unfair dismissal.

The expected process is as follows:

• Properly investigate the matter
• Inform you of the issues in writing
• Give you the opportunity to respond
• Conduct a disciplinary hearing or meeting with you
• Inform you of a decision in writing
• Provide you with the right to appeal

If you are facing an allegation of gross misconduct, you may face a suspension pending an investigation, this will be given on full pay. The suspension must only be for the period it takes to complete a full investigation. If the suspension is too long, it may be that it is no longer credible to return to work E.G where you manage accounts for clients. This breach of employment could give rise to a possible claim for constructive dismissal.

There is no requirement on employers to dismiss all employees who have committed similar gross misconduct, each case will be taken on its own circumstances.

There does not need to be absolute proof. An employer can still take disciplinary action for gross misconduct if:

There was genuine belief in your guilt for the misconduct in question, the belief was reasonable and the matter was properly investigated.

 Factors considered by the employment tribunal will be:

• Whether your employer had genuine belief in your guilt
• Was this belief reasonable?
• Was the matter properly investigated?
• Was there a disciplinary meeting held where you could state your case?
• Were you given sufficient notice of the meeting?
• Were you given notice of your right to be accompanied by a work colleague or trade union official?
• Were you provided with supporting documents/witness statements in advance of the meeting?
• Did you have adequate opportunity to state your case?
• Was the disciplinary hearing chaired by an impartial person?
• Were you given the right to appeal the decision?
• Did your employer follow its own policy?
• Has there been consistency in treatment of previous offences with other staff?

The first three are the most important and together are known as the “Burchell Test” –

“Whether your employer genuinely believed, and had reasonable grounds for believing, that you were guilty of the misconduct at the time, and at the time it held that belief, had carried out as much investigation as was reasonable in the circumstances.”

The Employment Tribunal must also be satisfied that the employer has followed the process set out in ACAS Code of Practice and that it acted within a range of reasonable responses, in treating misconduct as a reason to dismiss you.

In short, yes. It is possible for the tribunal to determine that a series of acts demonstrating a ‘pattern of conduct’ to be of sufficient seriousness to amount to gross misconduct.

You do not have to lodge an appeal. However, if you genuinely wish to continue working for your employer and you feel you have been wronged it is an option. It also carries the benefit that it is a paper-trial setting out the issues so it is clear you have pursued all avenues for redress. This will add weight to any later tribunal claims.

It can also be beneficial to lodge an appeal as it is a good means of finding a settlement with your employer if you have decided you want to leave.

However, if you have no intention to stay with your employer – common, as a result of the trust and confidence lost due to proceedings – then you must decide whether an appeal is worth lodging. There is a small chance the appeal will be upheld and it may harm your chances of winning a subsequent tribunal claim.

It does need to be considered that not following the appeals process can reduce any subsequent tribunal award by 25% on this basis. If however, you can show a good reason for not appealing E.G the relationship was beyond repair, then little to no reduction may be made.

 Although a one-off failure to pay a month’s salary would constitute breach of contract of employment, it is not usually serious enough to amount to resignation and a claim for constructive dismissal. However, a persistent failure to pay would certainly enable a claim for constructive dismissal.

Alternatively, a speedier remedy would be a claim for ‘unlawful deductions from wages’ this can also be better as you can remain employed while making the claim. The claim must be made within 3 months of the ‘deductions.’

When making a claim for backdated deductions, including holiday pay, the period that will cover is a maximum of 2 years.

Generally, it is considered, if you have no good reason for not being at work, you will not be paid for that time. Even with a good reason, there is no automatic entitlement to be paid, this must be agreed and contained within the employment contract. This does not apply to periods of sickness.

There are 3 conditions:

• Required or authorised by legislation E.G NI deductions
• Authorised by your contract of employment – provided you have been given a written copy of the terms
• You consented – in writing- to the deduction before it was made.

There are some exceptions which allow employers to recover payments from your salary E.G for earlier overpayment or expenses.

Poor work performance can trigger dismissal. However, it essential that in such cases, an employer follows a proper dismissal process. If they fail to do so, even if they have grounds to dismiss based on performance, the dismissal may be considered unfair.

Your employer must follow ACAS Code of Practice, if they have concerns about your performance they must inform you of this. They must give you an opportunity to improve, as well as providing support and assistance in this. You must be provided with a number of warnings, verbal, one written and final. Any objectives must be achievable and communicated.

If poor performance is not a genuine issue and is simply being used by an employer, process will only be one part of the issue, the other, the very grounds.

Often known as a PIP, is used by employers where it is being alleged an employee is performing poorly. It will be in writing for an employee to read and accept and is usually coupled with a formal disciplinary process.

The PIP should:

• Clearly and objectively set out failures
• Set out improvement expected with clear objectives
• State whether any support or training will be provided
• Provide for the timescales and frequency of reviews
• Make clear what the sanctions will be if you fail to improve

Do not sign a PIP you do not agree with. It is difficult to argue with an unfair PIP if you have already agreed to it. It is a good idea to take early legal advice here.

In this case your employer must consider the protection afforded to you by the Equality Act 2010, otherwise you can claim under disability discrimination.

If Disability is seen to be a factor in poor performance then any disciplinary procedures carried out will have to be deemed a proportionate means of achieving a legitimate aim. An employer will have to provide a good reason for rejecting alternatives to a disciplinary procedure in relation to poor performance where a disability is involved. Your employer may be under a duty to consider what reasonable adjustments could be made to improve your performance where a disability is involved before beginning any disciplinary process.

 Absolutely, however if you do raise a grievance during this time, the performance disciplinary process may be temporarily suspended. However, if the two issues are related, your employer has the right to deal with both at the same time.

This is often a very beneficial way to proceed for both parties as often at the point of performance process, the relationship has become strained. A settlement agreement can either be offered by your employer or negotiated by you or a professional advisor.

This could be a claim for unfair dismissal. If for example, the bar set for improvement is unrealistic in the timescale given or outside of the bounds of your usual job role, the process will not be considered to have been followed.

There is also the possibility of claiming for constructive dismissal if you feel that as a result you had no choice but to resign, however in this situation you would have to lodge a grievance first.

• Line manager relationship – this can be a clue for the real reason for the PIP, such relationships are very important. It is often the case that it can come down to tension in the workplace as a result of personality clashes.
• PIP terms – unrealistic targets or timeframes can suggest you are being ‘set up to fail.’
• Long period of service – if the PIP is surprising as there has been a long history of good performance, backed by appraisals and bonuses.
• Team – if you are part of a team with no direct responsibility for the tasks, yet you have been specifically chosen for a PIP, this could be a clue.

An employer is not obliged to do so. However, they may be bound to do so, if it was agreed in a settlement agreement on the termination of your employment.

Your employer can give any reference that they believe to be accurate and true at the time and have reasonable grounds for that belief. Any information given must not be misleading to a future employer.

If you feel as if you have been given a bad reference, first obtain a copy. If this is refused, this can be done under the Data Protection Act. Once you have a copy, if you find the reference to be untrue, the first step would be communication with the employer.

If this fails, there are a number of options:

Negligence – If as a result of the inaccurate reference you suffer financial or economic loss, you may have a claim for negligent misstatement in the County Court. You will have to show detrimental impact on your future employment prospects and that your previous employer failed to exercise reasonable care in the preparation of the statement.

Discrimination – If the reason for the poor reference is because you fall under one of the protected characteristics under the Equality Act 2010 your employer may be acting unfairly and you may have a claim in the employment tribunal for discrimination.