EMPLOYMENT

If you still have questions take a look below for the answers

Call Today:

0330 0539147

Can I be sacked for making a claim against my employer?

Being dismissed for making a claim against an employer is potentially victimisation.

Victimisation is prohibited by s.27 of the Equality Act 2010.  This prohibits retaliation by employers where an employee has done a protected act or where it is considered that a person has done or may do a protected act.

A protected act is: 

  • Bringing proceedings under the Equality Act;
  • Giving evidence or information in relation to proceedings under the Equality Act;
  • Making an allegation that an individual has breached the Equality Act.
What is the purpose of a settlement agreement?

Most civil disputes are resolved by compromise.  The tribunal system has increasingly encouraged settlement and alternative dispute resolution to reduce litigation.  Since April 2014 it is now a requirement to try to settle cases before bringing them to Tribunal through the ACAS early conciliation scheme.

Through settlement, parties can avoid the uncertainty of the trial process, save cost, achieve a quicker solution, avoid publicity and agree remedies outside of the tribunals powers (such as agreed references and post termination restrictions).

What should be in a settlement agreement?

Settlement agreements are not uniform and the terms are dealt with once negotiations have taken place.  Common settlement agreement terms include:

  • Notice pay and any holiday pay due;
  • Contractual benefits, bonuses and shares;
  • Termination payment value (compensation or ex-gratia payments);
  • Non-Disclosure Agreements;
  • Waiver and settlement of employment claims;
  • Tax position of payments;
  • Notice Pay;
  • Legal costs;
  • Warranties from the employee;
  • Repayment of termination payment from the employee if they commence a claim or breaches the agreement
What does furlough mean?

In March 2020 the government introduced the Coronavirus Job Retention Scheme (CJRS) to help employers pay their employees during the pandemic.

Furlough itself is a leave of absence from work. 

In the current circumstances, to be furloughed means to be on a leave of absence from work whilst being paid under the CJRS.

Can I lose my job if I cannot work from home?

If you cannot work from home then your employer will likely have put you on furlough, otherwise the company may have no choice but to end your employment.

The reason why you are unable to work from home should be explored by you and your employer.  If there are adjustments that could be made that are reasonable then there could be an expectation that your employer assists you.

    Can I be furloughed whilst on maternity leave?
        Yes if you receive occupational maternity pay from your employer.
          Government guidance states women can be on furlough and maternity leave so the employer can receive the costs of occupational maternity pay.
          However, whilst on maternity leave you are only entitled to occupational maternity pay, there is no entitlement to normal pay during the leave.

        Your employer claims the Statutory Maternity Pay from HMRC and claim any additional occupational maternity pay to you from the furlough scheme.

        Whilst it may be tempting to end maternity leave early to get onto the furlough scheme, once the scheme ends you will be expected to return to work immediately.  You cannot go back onto maternity leave when the scheme ends.

      I am on sick leave, can I be furloughed instead?

      Furloughed employees retain their statutory rights, including their right to Statutory Sick Pay. This means that furloughed employees who become ill, due to Coronavirus or any other cause, must be paid at least Statutory Sick Pay. It is up to employers to decide whether to move these employees onto Statutory Sick Pay or to keep them on furlough, at their furloughed rate.

      Employers are also entitled to furlough employees who are off on long-term sick leave. It is up to employers to decide whether to furlough these employees. Such an employee can continue to be furloughed from 01 July so long as you have previously submitted a claim for them in relation to a furlough period of at least 3 consecutive weeks taking place any time between 01 March 2020 and 30 June.

        What do I need to do if I feel I am being discriminated against at work?

        Your employer should have a policy to deal with discrimination in the workplace.  This will likely involve an internal grievance procedure which should be followed.

        If matters cannot be resolved internally individuals can contact ACAS who will seek to mediate.  If there is no resolution then it may be necessary to bring a claim in the Employment Tribunal.

        What can I do if I think the decision to furlough me was discriminatory?

        Employers should be applying a fair selection process which they should be able to explain to their employees.  If the process was discriminatory an employee can potentially bring a discrimination claim to the Employment Tribunal.

          What are my rights when being made redundant?

          If your role is being made redundant, you might be eligible for certain things, including:

          • redundancy pay (eligible only with 2 years of continuous service)
          • a notice period
          • a consultation with your employer
          • the option to move into a different job
          • time off to find a new job 

          Redundancy must be selected in a fair way, such as your capability to do the job.

          Selection cannot be based on protected characteristics such as age, gender, or if you’re disabled or pregnant. If you are, this could be classed as an unfair dismissal.

           

            How can I prove unfair redundancy?

            Employers do not have to follow the ACAS code when they make redundancies but they do have to make sure that the selection process was fair.

            The tribunal will look at whether:

            • there was a genuine need to make redundancies;
            • they followed a fair procedure for consulting the workforce and selecting people for redundancy
            • the decision to select you was fair
            • your employer made reasonable efforts to find you alternative employment elsewhere in the company.
              Can I be made redundant if my job still exists?

              No, if your job still exists then it is not likely to be a genuine redundancy.

                What is a settlement agreement?

                A settlement agreement is a legally binding contract between employer and employee which settles claims that the employee may have against their employer.

                What is the difference between a settlement agreement and redundancy?

                A settlement agreement is a mutual way of ending an employment.  Employees can agree to not follow the usual redundancy processes required in exchange for increased compensation in excess of their statutory or contractual redundancy package.

                Both parties can benefit as the employer can have their potential legal liabilities lessened whilst the employee can benefit from an agreement which is enhanced on the normal package they would receive were they to be made redundant.

                  Who can advise on a settlement agreement?

                  A settlement agreement is a legally binding document between the employee and employer settling claims the employee may have arising from the employment or termination of employment. The employee must be advised by a qualified independent adviser, usually a Solicitor or Chartered Legal Executive, before signing the agreement.

                    Can employees on furlough take holidays?

                    Workers who have been placed on furlough continue to accrue statutory holiday entitlements, and any additional holiday provided for under their employment contract.

                    Workers on furlough can take holiday without disrupting their furlough. The notice requirements for their employer requiring a worker to take leave or to refuse a request for leave continue to apply. Employers should engage with their workforce and explain reasons for wanting them to take leave before requiring them to do so.

                    If an employer requires a worker to take holiday while on furlough, the employer should consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday.

                    An employer should not automatically pay a worker on holiday the rate of pay that they are receiving while on furlough, unless the employer has agreed to not reduce the worker’s pay while on furlough.

                    If a worker on furlough takes annual leave, an employer must calculate and pay the correct holiday pay in accordance with current legislation.  Where this calculated rate is above the pay the worker receives while on furlough, the employer must pay the difference. However, as taking holiday does not break the furlough period, the employer can continue to claim the 80% grant from the government to cover most of the cost of holiday pay.

                      Can I refuse to be furloughed?

                      Yes, you cannot be forced into furlough and any changes to your employment contract should be agreed.

                      Employees should note that refusing furlough could lead to your employment ending due to redundancy.

                      Please find our relevant redundancies pages below.

                      *LINK TO REDUNDANCY FOR EMPLOYEES*

                      *LINK TO REDUNDANCY FOR EMPLOYERS*

                        Can I be made redundant during or at the end of furlough?

                        Yes, there is no right to be on furlough.  It is likely that redundancies will increase as the requirement for employers to pay percentages of the furlough payments increase.

                          What is whistleblowing?

                          Whistleblowing is when a worker reports certain types of wrongdoing.  This will usually be the result of something seen at work.

                          The wrongdoing disclosed must be in the public interest.  This means it must affect others such as the general public.

                          Whistleblowers can raise concerns at any time about an incident that happened in the past, is happening now, or you believe will happen in the near future.

                          The law regarding whistleblowing is complex, we recommend seeking legal advice if you are considering whistleblowing.

                          How do I whistle blow against my employer/company?

                          Whistleblowers can tell their employers.  They may have a whistleblowing policy that outlines what to expect when you report your concern.  Even if there is no policy, individuals can still report their concern.

                          There are other options if you do not want to report your concern to your employer, for example you can get legal advice from a lawyer, or tell a prescribed person or body.

                          If you tell a prescribed person or body, it must be one that deals with the issue you’re raising, for example a disclosure about wrongdoing in a care home can be made to the Care Quality Commission.

                            Who can whistle blow?

                            Whistleblowers are protected if they are a worker.

                            We recommend seeking legal advice if you are unsure if you are protected.

                              Can I be identified if I whistle blow?

                              Whistleblowers can tell the employer or a prescribed person anonymously.  However, they may not be able to take the claim further if they have not provided all of the information required.

                              Whistleblowers can give their name but request confidentiality.  The employer or body should make every effect to protect identity.

                                Do I have to work my notice if I am being made redundant?

                                Yes, employees still have to work their notice period unless their employer agrees otherwise.  This can be agreed by the employer and employee.

                                  1