The Workers (Predictable Terms and Conditions) Act 2023: A New Era of Worker Protections
Set to come into force around September 2024, this legislation grants workers, especially those in atypical employment like temporary or zero-hour contracts, the right to request more predictable working patterns.
The Act is designed to address the challenges faced by individuals in precarious work arrangements, where the unpredictability of hours and income can create significant personal and financial insecurity.
Key elements of the Act include:
- Eligibility: Workers need to have at least 26 weeks of service to be eligible to make a request for a predictable work pattern.
- Request Limitations: Workers are permitted to make up to two requests within a 12-month period, covering aspects such as work hours, days, and contract lengths.
- Employer Response: Employers must address these requests within a month and can decline them based on specific grounds such as additional costs, impact on customer demand, insufficient work during the requested times, and planned structural changes.
Implications for Employers
For employers, the Act represents a significant shift in the management of workforce flexibility. It underscores the importance of careful workforce planning and the need to establish clear, transparent procedures for handling requests under the new law.
Employers will need to prepare for an increase in formal requests for more predictable working arrangements. This preparation may involve reviewing and, where necessary, revising current employment contracts, policies, and procedures to ensure compliance with the new legal framework. Additionally, employers should consider the potential impact on business operations, particularly in sectors that traditionally rely on flexible or irregular working patterns, such as hospitality, retail, and logistics.
The Act also introduces potential liabilities for employers who fail to comply with the new requirements. As with other employment rights, failure to handle requests appropriately or to provide sufficient reasons for a refusal could result in tribunal claims, with associated reputational and financial risks.
Next Steps and Recommendations
With the secondary regulations expected to come into force next month, employers should take proactive steps to ensure they are fully prepared for the changes. Key actions include:
- Reviewing Employment Contracts: Ensure that current contracts reflect the new rights and obligations under the Act, and consider how predictable working terms could be accommodated.
- Updating Policies and Procedures: Establish clear, consistent procedures for handling requests, including training managers and HR personnel on how to assess and respond to requests fairly and lawfully.
- Assessing Workforce Planning Needs: Evaluate how increased predictability might affect business operations and consider adjustments to workforce planning strategies to maintain flexibility while complying with the new requirements.
- Communication with Employees: Clearly communicate the new rights and processes to employees, ensuring they understand their rights under the Act and how to make a request.
Sherrards Solicitors LLP is well-equipped to assist employers in navigating these changes. Our employment law specialists are on hand to provide guidance on compliance, workforce planning, and dispute resolution, ensuring that your business is prepared for the implementation of this significant legislation.
For more information or to discuss how this legislation may impact your business, please contact our employment law team.
An Employer’s Guide to Handling Employees Involved in Recent Anti-Immigration Riots
Understand the Legal Framework
Before taking any action, it’s essential to understand the legal framework that governs employee conduct outside of work. Under English law, an employee’s conduct outside the workplace can be grounds for disciplinary action if it impacts the employer’s business or the employee’s ability to perform their job. This could include damaging the company’s reputation or relationships with clients and colleagues.
Gather Facts and Evidence
If you become aware that an employee has been involved in anti-immigration riots, it’s crucial to gather all the facts before proceeding. This may include:
- Confirming the employee’s involvement through reliable sources.
- Reviewing any social media posts or public statements made by the employee.
- Considering whether the employee’s actions have been criminally charged or are under investigation.
However, employers must also respect the employee’s right to privacy and avoid making assumptions without sufficient evidence.
Assess the Impact on the Business
Next, assess how the employee’s involvement might affect the business. This assessment should consider:
- Reputation: Could the employee’s actions harm the company’s public image?
- Workplace Harmony: Could their involvement cause tension or conflict among other employees?
- Client Relationships: Might clients react negatively if they learn of the employee’s involvement?
The severity of the situation will often determine the appropriate response. For instance, an employee in a public-facing role might pose a greater risk to the company’s reputation than one in a less visible position.
Consider Your Options
Once the facts are clear and the impact is assessed, employers must decide on the most appropriate course of action. Options include:
- No Action: If the involvement is minor and doesn’t impact the business, no action may be required.
- Informal Discussion: A private conversation with the employee to understand their perspective and reinforce company values.
- Formal Disciplinary Action: If the employee’s actions have damaged the company or breached company policy, disciplinary measures, including warnings, suspension, or even dismissal, may be necessary.
Any action taken should be proportionate and in line with the company’s disciplinary policies. Ensure that any disciplinary process is fair and consistent with the company’s procedures.
Review and Reinforce Company Policies
This situation also provides an opportunity to review and reinforce company policies related to conduct, social media use, and diversity and inclusion. Make sure that all employees understand the company’s expectations regarding behaviour both inside and outside of work.
Consider implementing training sessions that address the importance of diversity, inclusion, and respectful conduct. This can help prevent future issues and foster a more inclusive workplace culture.
Communicate with Your Workforce
If the employee’s involvement in the riots becomes public knowledge, it may be necessary to communicate with your broader workforce. However, this must be done carefully to avoid exacerbating tensions or violating privacy rights.
Consider a general communication that reaffirms the company’s commitment to diversity, inclusion, and respectful behaviour, without singling out the individual employee involved.
Seek Legal Advice
Given the complexities of these situations, it’s advisable to seek legal advice before taking any formal action. This ensures that your response complies with employment law and minimises the risk of legal challenges.
Conclusion
Employers must tread carefully when responding to employees involved in anti-immigration riots. A balanced approach that considers the legal framework, the impact on the business, and the company’s values will help navigate this difficult situation. By handling the matter with care, employers can protect their business interests while promoting a respectful and inclusive workplace.
If you require assistance in dealing with such matters, Sherrards is here to help. Please do not hesitate to contact us for expert legal advice tailored to your specific needs.
To find out more, contact Emma O’Meara.
Navigating Employment Law in the Agile Digital Marketing Landscape
As a business, adapting to technological advancements in addition to legal obligations is key to success. We raise here, some key considerations of issues to watch out for:
- Contractual Arrangements:
- Freelancers and Contractors: Many digital marketing roles involve freelancers or contractors. Businesses should aim to classify workers correctly to comply with employment tax regulations. HMRC is pushing forward with plans to look into contractual arrangements
- Zero-Hour Contracts: These flexible arrangements offer agility but also require careful management to ensure fairness and compliance.
- Remote Work and Flexible Hours:
- Remote Work Policies: As digital marketing teams will often be working remotely, businesses should establish clear policies covering remote work expectations, communication, and data security. Knowing who to contact and when is key.
- Flexible Hours: Balancing flexibility with productivity is essential. Employers must address work-life balance and overtime compensation.
- Data Privacy and GDPR:
- Marketing Data Handling: Digital marketers deal with customer data. Compliance with the General Data Protection Regulation (GDPR) is critical. This can be a complicated area and expensive if it goes wrong.
- Consent and Transparency: Marketers must obtain explicit consent for data processing and provide transparent privacy notices.
- Intellectual Property (IP):
- Content Creation: Digital marketing relies on content creation (blogs, social media, etc.). Businesses should clarify IP ownership in employment contracts, making it clear who retains what on any exit. Don’t make the common mistake of adding the IP clause and then having your employee simply sign without making it a deed.
- Non-Compete Clauses: Restrictive covenants protect IP but must be reasonable and specific.
- Anti-Discrimination and Diversity:
- Equal Opportunities: Employers must promote diversity and prevent discrimination based on race, gender, age, or disability.
- Unconscious Bias: Training can help mitigate unconscious bias in recruitment and promotions.
- Health and Safety:
- Remote Work Safety: Employers must ensure remote workers have a safe and ergonomic workspace and be aware of changes.
- Mental Health Support: The digital marketing industry can be intense; mental health support is crucial.
- Agile Workforce Management:
- Adapting to Change: The agile nature of digital marketing requires flexibility in workforce planning.
- Consult Legal Experts: Seek legal advice tailored to your business needs, one precedent does not necessarily suit all and ensure you are aware of the ramifications of taking out that seemingly ‘innocuous’ paragraph. It could end up coming back to bite you.
In summary, the digital marketing sector thrives on innovation, but compliance with employment law remains paramount and behind all the advances taken. Businesses that proactively address these implications will navigate the evolving landscape successfully, putting the business in the best possible position as we move through 2024 and beyond.
If you want to find out more, contact Emma Peacock.
Ministry of Justice set to re-introduce fees in Employment Tribunals
As part of The Sherrards Training Academy, we have asked our Legal Assistants and Trainee Solicitors to write articles to support their learning, and also to ensure they start to build on their own personal brand. This article has been fact-checked and proofread by Head of the Employment department, Mark Fellows.
On Monday the government issued a consultation paper which proposes re-introducing fees in Employment Tribunals and the Employment Appeals Tribunal, with the main aim ‘to contribute to the continuous improvement of His Majesty’s Courts and Tribunals Service and reduce the cost to the taxpayer to fund these services’. The new proposal comes nearly 7 years after the Supreme Court ruled the previous charging regime as unlawful when trade union Unison successfully argued that it prevented thousands of employees from securing justice.
The proposed fee is £55 to bring a claim in the Employment Tribunal, which is considerably modest in comparison to the previous fee regime This is a one-off fee which is £55 irrespective of the type of claim (but some limited claims will be exempted) or whether the claim is brought by a single claimant or multiple claimants. Unlike the 2013-2017 Tribunal fee regime, no hearing fee will be applied under the government’s most recent proposals.
To start an appeal in the Employment Appeals Tribunal, the same fee of £55 would also apply.
A system for remission from fees would be available for those who genuinely cannot afford to pay the fee (as defined by the government).
It is thought that the proposal may act as an incentive for parties to apply their mind to settlement and engage in negotiations early in the process through ACAS, without the need to proceed to issuing actual claims in the Tribunals, thereby helping to alleviate the huge pressures currently faced by the Tribunal service. It is questionable whether such a modest fee will actually have this impact, but at the same time, it was recognised that if the fee was too high, it might be open to further challenge from the Unions.
The consultation runs for 8 weeks and closes on 25 March 2024 – please stay tuned for further updates from the Employment Team.
Navigating the New Holiday Pay Calculation Rules
Legal Entitlement and Calculation
All full-year workers, with the exception of the genuinely self-employed, are entitled to 5.6 weeks of paid statutory holiday per year. Four weeks of this entitlement must be paid at the worker’s ‘normal’ rate of pay, including regular payments like overtime, bonuses, and commissions, as specified by Regulation 13 of the Working Time Regulations. The remaining 1.6 weeks can be paid at the ‘basic’ rate of pay, that is, the worker’s basic remuneration (as specified by Regulation 13A).
Holiday pay is designed to ensure that workers do not suffer financially when taking time off. For those with regular hours and fixed pay, the holiday pay should mirror what they would have earned if they were at work. From 1st January 2024, the regulations now specify that certain payments, such as commission payments and those related to professional or personal status, must be included in the calculation of the 4 weeks of normal holiday pay.
Irregular Hours and Part-Year Workers
For leave years starting on or after 1st April 2024, part-year and irregular hours workers must have their statutory holiday entitlement calculated based on actual hours worked, using the 12.07% accrual method. Alternatively, employers can opt for rolled-up holiday pay, a method applicable exclusively to irregular hour and part-year workers.
Rolled-up Holiday Pay
Rolled-up holiday pay allows employers to include an additional amount with every payslip to cover a worker’s holiday pay, instead of paying it when the worker takes annual leave. The calculation involves 12.07% of the worker’s total pay, representing the proportion of statutory annual leave in relation to the working weeks of each year. If employers choose this method, the entire amount of leave for irregular hours and part-year workers is paid at the ‘normal’ rate of pay.
Considerations for Employers
Employers intending to implement rolled-up holiday pay should review workers’ contracts to ensure compliance and avoid unintentional variations. For those opting not to use rolled-up holiday pay, the existing 52-week reference period method can be employed to calculate holiday pay, considering the worker’s previous 52 paid weeks.
Payment in Lieu
If irregular hour or part-year workers do not utilise their accrued holiday entitlement upon leaving employment, they are entitled to a ‘payment in lieu.’ Employers should calculate this by determining the remaining holiday entitlement and computing the holiday pay for the period. Deductions should be made for any holiday taken during the employment period.
Conclusion
As the new Holiday Pay Calculation rules come into effect, employers must stay informed and adapt their practices accordingly. Compliance with these regulations not only safeguards against legal issues but also fosters a fair and transparent work environment. By understanding the nuances of holiday pay entitlement and calculation, employers can ensure that their workforce is compensated appropriately for their time away from work.
If you have any questions or wish to discuss holiday pay for your business, please contact the Employment Department.
New Year, New Job? Don’t forget the restrictive covenants!
Moving job should be a straightforward matter, but more often than not employees either don’t have a copy of their most recent employment contract or, if they do have copy, don’t look at it for myriad reasons.
When an employee leaves, a good employer will typically arrange an exit interview with a leaver. This is an opportunity for the employer to run through a checklist of items that a leaver needs to deal with before they depart e.g. returning company property, handover of work. Employers should also use that meeting as an opportunity to remind a departing employee of their ongoing obligation of confidentiality and any restrictive covenants they are subject to. Collectively these obligations are commonly referred to as post-termination obligations.
However, so often when we are instructed, we discover that this has not happened, meaning that employee may be about to blithely embark on a new role with a direct competitor, may be setting up themselves in competition, may be contacting clients and contacts that are protected or contemplating poaching former colleagues. However, even if an exit interview does take place, an employee may have their own plans regardless.
Post-termination restrictions to watch out for
A well drafted employment contract will typically contain the following suite of post-termination restrictions:
- Non-compete – these clauses are inserted to prevent the employee from working for a direct competitor of their employer. A well drafted clause will normally home in what is meant by a direct competitor. These clauses may even go further and say that an employee cannot set up on their own and work in competition. (Check out the government website for more details)
- Non-solicitation – a clause of this type will be included in the employment contract where the employer wishes to protect against its clients and contacts from being enticed away to work with the employee somewhere else.
- Non-poaching – this clause is designed to deter the employee from encouraging their former colleagues to leave their employment.
- Non-dealing – this restriction is sometimes inserted to widen the effect of the above covenants, so that a departing employee is prevented from soliciting or poaching, but also that they cannot even deal with / have contact with the people defined in those clauses.
- Confidentiality – this is an ongoing restriction that carries on in perpetuity. If well drafted, the clause will contain a concise list of information that is considered to be confidential and should not be utilised in any way by the employee.
Action points for employers and employees
If you’re an employer, ensure you have an exit interview/meeting with a departing employee. Make it clear to them what restrictions are going to apply to them after they leave and confirm it in writing to the employee.
Review your existing employment contracts and check that they contain appropriate and properly drafted post-termination obligations.
If you’re an employee, familiarise yourself with the terms of your contract and understand what you can and cannot do after leaving employment. If you are unsure, you could either take pre-emptive legal advice or seek clarification from your employer. Ensure that any clarification is in writing, so you can rely on it later if needs be.
If you’re an employer and you’ve discovered that an employee has left and is now acting in breach of their contract or you’re an employee that’s now being pursued by your former employer, please contact Aaron Heslop for a no obligation discussion.
Furthermore, if you’re looking to review your existing employment contracts, we would recommend a discussion with our Employment Team.
Extension to Redundancy Protection
Pregnant employees and those returning from family leave to be given priority status in redundancy situations from April 2024
What does this mean?
From 6 April 2024, employees who are pregnant or returning from maternity, adoption or shared parental leave will all have the right to be offered a suitable alternative vacancy, if one is available, before being made redundant. This gives these employees priority access to redeployment opportunities over other redundant employees.
When does this priority status apply to pregnant women?
Protection under the new legislation begins when the employer has been notified of pregnancy and 18 months from the child’s date of birth if notified to employer before the end of maternity leave (or 18 months from the Expected Week of Childbirth if not notified).
For women who suffer a miscarriage, the protection ends two weeks after the end of the pregnancy, for pregnancies ending before 24 weeks (as pregnancies ending after 24 weeks are classed as stillbirths and the employee would be entitled to statutory maternity leave).
What about employees who adopt?
The protection begins at the beginning of adoption leave and ends 18 months from date of placement or date of entry into Great Britain (if overseas adoption).
Is it the same for shared parental leave (SPL)?
A parent needs to take only a minimum of 6 weeks’ consecutive shared parental leave before becoming eligible for 18 months of protection.
How does this affect your business?
You’ll need to bear the above in mind for any restructures taking place after April 2024. There will now be more employees who are potentially going to be given priority status, which may mean you’ll need to carry out a selection process amongst priority status employees at risk of redundancy where there aren’t enough vacancies. Careful consideration will need to be applied here to prevent claims of discrimination.
You may also see a take up of SPL because of the additional protections the employee will benefit from.
It’s important to comply with the law as an employee that isn’t offered a suitable alternative vacancy when they have priority status would have a claim for an automatic unfair dismissal, which would mean a compensatory award that is not capped. There’s also no requirement to have two years’ service to qualify for this type of claim. The employee may also have a claim for discrimination. Given the significant penalties, employers will need to exercise extreme caution and it’s strongly recommended to take legal advice before making redundancies.
Carer’s Leave Regulations 2024
What are the key take away points from the new Carer’s Leave Regulations?
An employee will be entitled to take one week of unpaid carer’s leave in any 12 month period, where they have a dependant with a long-term care need and want to be absent from work to provide or arrange care for the dependant.
- Importantly, the right will be a Day one employment right.
- Employees will have the option to take the carer’s leave on consecutive days, non-consecutive days, half days or full days.
- Employees must give written notice of their intention to take carer’s leave, confirming their entitlement to take it. The notice requirement will be at least twice as many days as the period of leave requested.
- Employers will have a right to postpone a request if they reasonably consider that the operation of the business would be unduly disrupted. The employer must give notice of the postponement before the leave was due to begin and must explain why the postponement is necessary. The employer must then permit the employee to take carer’s leave (of the same duration) on a date determined by the employer after consulting with the employee, which must be within one month of the start date of the leave originally requested by the employee.
- Employees will be protected from detriment and dismissal because they choose to take, or seek to take, carer’s leave (or the employer believes they are likely to do so).
To find out more, contact the Employment team or Head of the Department, Mark Fellows.
‘I’m an employee, get me out of here!’
The difficulty for an employer can often be in deciding how to respond and whether to accept the employee’s resignation. Or in some cases, the resignation might be welcome news for the employer, but the employee seeks to retract the resignation, arguing they did so in the heat of the moment.
The general rule is that a resignation from an employee cannot be unilaterally withdrawn without the consent of the employer. If an employee submits a letter of resignation, and a few weeks’ later they realise they have made a mistake, the resignation cannot be retracted unless the employer agrees to it. However, there is an exception to the rule, and that is ‘heat of the moment’ resignations, where it is generally considered that these are not binding on an employee because they may not reflect the true intention of the employee.
The recent case of Omar v Epping Forest District Citizens Advice has provided the Employment Appeal Tribunal (EAT) with an opportunity to clarify the principles that employers should consider if they find themselves dealing with this type of resignation.
So what happened in Omar?
Mr Omar worked for the Epping Forest District Citizens Advice Centre (“Advice Centre”).
- On 3 February 2020, the CEO of the Advice Centre wrote to Mr Omar about his timekeeping. Mr Omar was unhappy with the letter and verbally resigned to his line manager, Ms Skinner. Ms Skinner told him to calm down and indicated that she would not accept his resignation.
- On 5 February 2020, Mr Omar became angry again about another matter, and resigned again, this time giving his one month’s notice. Ms Skinner responded by advising Mr Omar to calm down and again said she would not accept this resignation.
- On 19 February 2020, Mr Omar became angry for a third time, when Ms Skinner queried some holiday dates which Mr Omar believed he had booked. He swore and shouted at Ms Skinner and used words of resignation. In particular, he said he was ‘done with the organisation’ and that Ms Skinner should ‘tell who you need to but I’m off because I’ve had enough’.
Later that day (19th February), the CEO of the Advice Centre had a meeting with Mr Omar and Ms Skinner to discuss what had happened earlier that day. Mr Omar explained his reasons for ‘blowing up’ – he said he was aggrieved about the letter regarding his timekeeping and added ‘I have been working under considerable pressure for some time as I was also helping my father care for my mother who has dementia.’ Mr Omar alleged that the meeting ended with the CEO asking if he and Ms Skinner could continue working together and that the CEO had offered him an alternative role and given him a chance to think about his position.
However, the Advice Centre argued that the purpose of this meeting was to ensure Mr Omar did not leave his employment on bad terms and that at the end of the meeting, the CEO had asked Mr Omar and Ms Skinner to go away and think about how they could continue working together over Mr Omar’s 1 month notice period. It denied having offered Mr Omar an alternative role and said that Mr Omar did not attempt to retract his resignation.
On 21 February 2020 (his next working day), Mr Omar met with the CEO again. She told him that Ms Skinner had confirmed that she could no longer work with him and that his resignation would stand. The Advice Centre’s case was that Mr Omar said in response that he could not work with Ms Skinner either and that therefore his resignation still stood. It was accepted by Mr Omar that at the end of this meeting, he agreed to the CEO’s requests to put his resignation in writing.
However, Mr Omar did not do that.
Instead, on 23 February 2020 he sent an email to the CEO, stating ‘my understanding is that as a result of my behaviour [Ms Skinner] now wants to accept my resignation as she will be unable/unwilling to work with my going forward, which I understand. However, I wish to retract my resignation as it was a “heat of the moment” resignation’. Mr Omar went on to suggest that the Advice Centre allocate him to a different office.
The Advice Centre refused to accept the retraction of his resignation and treated his employment as terminating on one month’s notice running from 19 February 2020.
Mr Omar claimed he had been unfairly dismissed.
What did the Employment Tribunal find?
The Employment Tribunal concluded that Mr Omar had resigned, and that as a result, there was no dismissal by the Advice Centre. Therefore, in the absence of a dismissal, his claim for unfair dismissal failed. Mr Omar appealed to the EAT.
The EAT Decision
The EAT found that the Tribunal’s decision was ‘substantially flawed’ and that it had not applied the correct legal principles to the case, and that the case would therefore be remitted to a fresh Tribunal to conduct a full rehearing. This means the claim for unfair dismissal will be reheard, and possibly a different outcome will be reached.
The EAT did however use the case as an opportunity to set out guidelines that an employer should consider when dealing with resignations:-
- Words of resignation used by the employee must be construed objectively – consideration must be given to whether, objectively speaking, it would have appeared to the reasonable bystander that the employee really intended to resign.
- What the employer subjectively understood the employee’s words to mean is relevant, but it is not definitive.
- Importantly, the subjective intention of the employee is not relevant (i.e. what was going through their head when they communicated the words of resignation) – the key is what was actually said by the employee.
- It must be apparent that the employee genuinely intended to resign and that they were in their right mind at the time – if an employee is highly emotional then this could lead to a suggestion that their words were not genuinely intended.
- The types of circumstances that might suggest a resignation was not really intended include where the employee is angry and overhasty, is behaving out of character, has a relevant mental impairment, is immature, or is under extreme pressure from another party.
- Aswell as the precise words used by the employee at the time of the resignation, any evidence about what happened after the resignation may also help in judging whether a resignation was really intended at the time. For example, the evidence may suggest the resignation was really intended, but that the employee had simply had a change of heart afterwards, in which case the resignation will still stand.
- The same rules apply to written notices of resignation as to oral ones. However, a written notice will usually indicate to an employer a certain degree of thought and care, which will make it less likely that the employee did not intend to resign.
So, what are some useful hints and tips for employers to consider when dealing with heat of the moment resignations…..
Where an employee resigns in an obviously composed and measured manner, it will usually be much less risky for the employer to take the resignation at face value. However, where an employee is visibly upset, angry, stressed, or emotional and impulsively verbalises words of resignation in a pressured or stressful situation, employers should not assume the resignation is valid. Instead, it is good practice to take a step back and assess the situation, consider the exact words used by the employee, alongside the EAT’s guidelines, and decide whether it is reasonable to accept the resignation in all the circumstances.
It would be advisable for managers to take an accurate written note of the exchanges between the employer and employee and to formally record what they understood the employee’s exact words to mean. Any meetings to discuss the resignation should be documented.
It may also be appropriate, to mitigate any risks, to offer the employee an opportunity to take some time out to reflect on the situation. If on reflection they do still wish to resign, employers should ask that they confirm this in writing by giving their formal notice.
These types of situations are undoubtedly a tricky area for employers and no two ‘heat of the moment’ resignations are the same. You, as the employer, have to tread carefully, as if you were navigating through a jungle (see what we did there!). If you have any questions about the effect of this decision, or would like any employment advice more generally, please do not hesitate to get in touch with our Employment team who will be happy to assist.
Disillusioned with the meaning of dismissals?
The obvious theme being the ‘dismissal’, and the fact that employment is ending or has ended. However, in many cases, those concepts are used interchangeably as if they all represent the same claim, yet they are all very distinct and separate claims that have to be considered against the applicable legal principles. A bit like an Urban dictionary, we will tell you what they really mean…
Summary Dismissal
This one is easy – a summary dismissal is a dismissal of an employee without any notice (and without paying them any notice either). Thus, it is quite common in cases of gross misconduct for the employee to be summarily dismissed.
Wrongful Dismissal
This is a breach of contract claim, namely that the employer has dismissed the employee in breach of the terms of the employment contract.
If the employment contract provides that the employee is entitled to 3 months’ notice on termination, but the employer only gives 2 months’ notice, then this will give rise to a wrongful dismissal claim. It is a contractual claim, and the employee will point to the fact that they have suffered loss – 1 month’s loss of salary and benefits.
Often this claim is pursued when the employer terminates without any notice (see summary dismissal above), but the employee contends that the employer did not have grounds to terminate without notice. This claim is not concerned with the fairness of the procedure followed; it is simply an anaylsis of whether the employer has breached the employment contract.
This claim can be pursued in the Employment Tribunal but a cap of £25,000 applies on the value of that claim. Thus, if the wrongful dismissal claim is worth more than £25,000, it may need to be pursued in the High Court.
Unfair Dismissal
To bring a standard unfair dismissal claim, the employee needs 2 years continuous service with their employer. No such service requirement exists for wrongful dismissal claims.
If an employee has more than 2 years of continuous service and is dismissed by their employer (irrespective of whether notice was given), they can claim that they have been unfairly dismissed.
The Employment Tribunal will consider three key issues. Firstly, did the employer have a potentially fair reason to dismiss the employee. There are currently 5 recognised potentially fair reasons – capability, conduct, redundancy, breach of a statutory duty or restriction, and some other substantial reason. The dismissal must be for one of those reasons. Secondly, the Tribunal has to be satisfied that the employer followed a fair procedure in reaching the decision to dismiss and thirdly, that the employer acted reasonably in treating that reason as sufficient to warrant dismissal.
Thus, this claim is not about notice; it is about the fairness of the dismissal and will involve an analysis of the reason for dismissal, the procedure followed and whether the decision to dismiss was reasonable.
Constructive Dismissal
The fundamental principle of a constructive claim is that the employee has resigned, as opposed to the employer expressly dismissing them. Note that like an unfair dismissal claim, the employee needs 2 years of continuous service with their employer to pursue a constructive dismissal claim.
In many cases, the employee will resign without notice, but equally, claims can be pursued even if the employee works their notice following their resignation. The employee typically argues that they are resigning either in response to a repudiatory breach of their employment contract by the employer (an express or implied term) or that the employer has engaged in cumulative conduct over a period, resulting in a ‘final straw’ incident, leaving them no choice but to resign.
There is much case law on examples of successful constructive dismissal claims, which can include reductions to, or non-payment of, salary or where the employer has breached trust and confidence.
In essence, the employee has to prove that they have been dismissed ‘constructively’ by their employer. If they are able to overcome that burden, then the Employment Tribunal will consider the fairness of the ‘dismissal’.
All clear…well, brace yourselves…it is possible for an employee to be summarily dismissed (for say gross misconduct), who then alleges that they were unfairly dismissed (because, for instance, they do not believe the employer followed a fair process in dismissing them) and also alleges that they were wrongfully dismissed (on the basis that the employer did not have grounds to terminate without notice)…
We like to keep things straightforward at Sherrards; we cannot say the same for the law.