Employment Law - Basic Mistakes to Avoid
By: Tim Bishop | Posted: 08th April 2010
Employment law is a complex area, and failing to follow the correct procedures can mean that the unwary employer will end up facing an employment tribunal claim. This can impact heavily on the business as regards both the costs of the case and any tribunal awards as well as a loss of working time and a decrease in morale. Listed here are four common employment law problems that all employers should be aware of.
1. Collective Redundancies.
If a minimum of 20 employees are going to be made redundant at a single establishment within 90 days, according to the Trade Union and Labour Relations (Consolidation) Act 1992, employers must consult with any representatives of the employees. If the employer fails to do so, they could be liable for a protective award that requires them to pay every affected employee a maximum of 90 days' pay. Employers contemplating making between 20 and 99 employees redundant must begin the consultation process at least 30 days before any decision to terminate contracts of employment is made. If more than 100 redundancies are proposed, this period increases to 90 days. Genuine efforts to consult must be made - merely keeping employees informed does not fulfil this duty.
In addition, in these circumstances notification must be made to the Secretary of State of the proposed redundancies at least 30 days or 90 days before giving notice to terminate an employee's contract.
Restructuring a business, even where staff may not actually leave your employment, carries with it potential risks. Care must always be taken where fundamental changes are made to employees' jobs. If you propose to retain an employee on what is in reality a different contract of employment, this is a proposal to terminate the existing one.
2. Employees on Fixed-term Contracts.
The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 guarantee employees on fixed-term contracts the right not to be treated less favourably than comparable permanent employees, especially with regards to contract terms, unless there is a good reason for the difference in treatment. Furthermore, the Regulations aim to prevent successive fixed-term contracts when a worker is actually a permanent member of the workforce. To discourage this practice, a fixed-term contract is normally automatically converted into a contract of indefinite duration once an employee has completed four years' continuous employment under two or more fixed-term contracts. Service before 10 July 2002 does not count towards the period of four years' continuous employment so the first date on which fixed-term contracts could be converted to indefinite contracts was 10 July 2006. If an employee is dismissed because they have tried to enforce their rights under the legislation, it is automatically classed as unfair dismissal.
3. TUPE.
The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) apply to any size of business and protect the employment rights of employees when their employer changes as a result of the 'relevant transfer' of a business or a part of one. If a business is sold and the TUPE Regulations apply, both parties have a duty to inform and consult with the appropriate representatives of any employees that have been affected to gain their agreement to the proposal.
When a business or business unit is being transferred, with its employees, it is essential to take advice at the planning stage.
4. Whistleblowing.
The Public Interest Disclosure Act 1998 (PIDA) - commonly called the 'Whistleblowing' Act - gives workers legal protection when disclosing information relating to crimes, breaches of a legal obligation, miscarriages of justice, dangers to health and safety or the environment and to the concealing of evidence relating to any of these. It is automatically unfair dismissal to dismiss an employee for making a 'protected disclosure', in good faith, to someone to whom they are entitled to make it, or to penalise them for doing so. The protection afforded continues to apply after the termination of the whistleblower's employment.
Any employer faced with any of these issues should, unless they are absolutely sure of their legal position, seek expert advice from a specialist employment law solicitor.
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Bonallack & Bishop are specialist Employment Law solicitors with particular experience of compromise agreements. Tim Bishop is senior partner at the firm, responsible for all major strategic decisions. He has grown the firm by 1000% in the last 12 years and has strong plans for its continued expansion.This article is free for republishing
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Tags: circumstances, jobs, proposal, working time, secretary of state, contract of employment, employment tribunal