Employment Obligations Under Current Law
The Right to a Contract of Employment
The Right not to be Unfairly Dismissed
Generally speaking, employees need one year's continuous service with their employer to present a claim of unfair dismissal to an Employment Tribunal. The upper limit on the compensatory award, which an employer can be ordered to pay to an employee, as from 1 February 2006, is £58,400. In addition to this, an employer will be ordered to pay a basic award which is calculated according to the employee’s age, length of service (up to a maximum of 20 years’ service) and a weeks’ statutory pay, which as of 1 February 2006 is £290. The maximum basic award is £8,700.
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Examples of exceptions to the one-year rule for claiming unfair dismissal are if the dismissal is found to be for reasons connected with pregnancy, trade union membership activities, health and safety issues, all forms of unlawful discrimination, TUPE, or public interest disclosure ("whistleblowing"). If an employee believes his dismissal was for one of the above reasons, he can make a claim for unfair dismissal as soon as his employment begins.
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Potentially fair reasons for dismissal can be conduct (e.g. persistently breaking the rules, theft or fraud), capability (e.g. serious ill health or lack of qualifications), redundancy or some other substantial reason (SOSR).
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It is essential to follow the correct procedures, as recommended by ACAS, in dismissing employees as statistics show that approximately 97% of employers lose unfair dismissal claims on the basis of not following these correctly. Employees now have a statutory right to be accompanied by a fellow worker or a trade union official to a disciplinary hearing, and in many instances to a grievance hearing.
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Employees must generally make their complaint to the Employment Tribunal within three months less a day of the date their contract came to an end or the act complained of in the case of discrimination. Claims for a redundancy payment and equal pay can be made up to six months less a day after the end of employment. There are circumstances where the three month less a day time limit is extended, i.e. where the employee has raised a grievance and the matter is ongoing at the expiry of the initial time limit but advice should be sought in this instance.
Time off for Incidents
Employees are entitled to unpaid time off for incidents relating to dependants, e.g. a spouse, child, parent, or someone in the household other than a lodger. The time off allowed is to enable the employee to make arrangements to resolve the incident and therefore will only generally be for a day or two.
Maternity Leave
Revised laws came into force on 6th April 2003.
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Ordinary maternity leave entitlement is now 26 weeks, regardless of length. Employees are entitled to Maternity Pay (SMP) during this 26 week period providing they have 6 months’ continuous service by the 15th week before their baby is due. The rate is 90% of normal weekly earnings for the first 6 weeks and, as from 5 April 2006, is £108.85 per week after that.
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Additional unpaid maternity leave of up to a further 26 weeks is now an entitlement for employees with 6 months’ continuous service by the 15th week before their baby is due. This gives a maximum total maternity leave period of 1 year.
Parental Leave
As of 6th April 2003 there is also a right for fathers of children born or due after 6th April 2003 to take 2 weeks paid leave at a rate of £108.85 (as from 5 April 2006) per week. Employees must have 6 months’ service by the 15th week before the baby’s due date to qualify, and must take the leave in single blocks of 1 week within 56 days of the child’s birth. If only a few days are taken this will still be deducted as a block of 1 week.
Adoption Leave
As with Parental Leave, those with 6 months’ service by the date they are notified of a child being placed with them can take up to a maximum of 1 years leave. The statutory maximum has been set at the lesser of £108.85 (as from 5 April 2006) per week or 90% of weekly earnings for the first 6 months. The second 6 month period is unpaid.
Rights to apply for Flexible Working
Employees who are responsible for caring for a child who is under 6 years old ( or under 18 years old if the child is disabled) can apply to charge their hours, times and location of work, providing they have 26 weeks continuous service as at the date of request.
When dealing with a request, employers must act accordingly to a statutory set timetable and above all must take the request seriously.
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Employers must have a ‘clear business reason’, as defined by the Statute, for rejecting the request, and must do so in writing.
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See our March edition Personnel File for further details of this right, which exists as of 6th April 2003.
The Right not to be Discriminated Against For Reasons of Sex, Race, Disability Sexual Orientation, Gender, Religion or Religious Belief and as from 1 October Age.
Employees who believe they have been discriminated against for any of these reasons are entitled to make a claim to an Employment Tribunal regardless of length of service.
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It is also particularly important that employers do not indirectly discriminate, i.e. they must not apply a condition or requirement or operate a policy, procedure or practice, which has a substantially greater adverse impact on the employee by reason of, for example, their sex, their race, their religion etc.
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Employees must make their claim within three months less a day of the discriminatory conduct complained of.
The Right to be Accompanied at Disciplinary and Grievance Hearings
There is a statutory right for all employees to be accompanied at disciplinary and grievance hearings, not only by a fellow employee, but by a trade union representative, regardless of whether or not the employer recognises that particular trade union.
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Either of these representatives may make a statement on behalf of the employee and ask questions on their behalf but they may not answer questions put to the employee.
The Right to a National Minimum Wage
Workers aged 18-21are now entitled to at least £4.25 per hour (as from 1 October 2005).
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Workers over 22 are entitled to a minimum rate of pay of £5.05 per hour (as from 1 October 2005).
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The definition of worker is wide and includes home workers, agency workers and casuals.
Part-Time Workers
Part-time workers are entitled to equality of benefits and treatment as with their full time co-workers. This includes such things as the same basic rate of pay, sick pay and maternity pay, access to occupational pension schemes and training opportunities.
References
There is no legal obligation for an employer to provide a reference but a failure to do so may lead the employee to claim that this is possibly post termination discrimination and/or victimisation. Therefore, Employers should at least give a basic factual reference when they receive a reference request.
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If an employer does give a fuller reference, it has a duty to take reasonable care not to give misleading information, whether as a result of the unfairly selective provision of information, or inclusion of facts and opinions in such a manner as to give a false or mistaken inference, either positively or negatively.
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If an employer gives an inaccurate or misleading reference and as a result a job offer is withdrawn, the employee can seek compensation.
The Right to Protection from the consequences of Whistleblowing
Workers are protected from unfair dismissal or victimisation for blowing the whistle on wrongdoing at work.
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The Public Interest Disclosure Act covers cases where the worker reasonably believes that one of the following has or will occur: a criminal offence; failure to comply with legal obligations; miscarriage of justice; danger regarding a health and safety issue; an environmental risk; or a concealment of any of the above
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Employers should have a whistle-blowing policy to encourage workers to disclose any concerns to them so that the matter can be resolved internally if possible. Such a policy should also allow the employer to take action against workers who go public when it is unreasonable for them to do so.
Rights under the Working Time Regulations
The Working Time Regulations provide for a maximum working week of 48 hours, unless one of the exceptions applies, or the employee has signed a form to say that he wishes to opt out of the 48 hour working week
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The Regulations also provide for a minimum of 11 hours rest per day, a 20 minute break where there are more than 6 hours of continuous working, and a minimum rest period of 1 day per week.
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In addition the Regulations provide for a minimum of 4 weeks paid holiday per annum.
Rights under the Data Protection Act
Following a written request, employees have the right to be told whether data about them is being processed.
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Employers have 40 days to respond to such a written request.
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Confidential references, management forecasts and records relating to future pay negotiations and salary packages are specifically excluded from the data the employer is required to provide to the employee.
Trade Union Recognition
Trade Union recognition will be awarded automatically, if a majority membership can be demonstrated. Otherwise, where there is 40% support in the bargaining unit, and a majority vote in a secret ballot, a trade union will be awarded recognition by the Central Arbitration Committee (CAC).
Costs - A word of Caution
Tribunals have the power to award costs against either party but in reality this does not happen often. Therefore it is better to assume that both parties will bear their own costs in a Tribunal action.
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