The fourth and final part of the series by Philip Landau, employment lawyer and partner at Landau Zeffertt Weir Solicitors

References

Your employer is not obliged to provide you with a reference after you leave employment, but if they do, it needs to be fair and accurate. This is a subjective test. If your employer reasonably considers the reference to be fair, then the fact that you do not agree with it does not give you rights to object.

The vast majority of references are factual in any event, and will therefore just set out your name, job role and dates of employment. It is unlikely that any negative inference is drawn from this common practice.

If you are given an unfavourable reference, you can ask for a copy from the recipient (i.e. your prospective employer), but you are not entitled to demand a copy from your old employer who has actually written the reference.

Restrictive Covenants

Many employers will include clauses in your contract of employment which seek to restrict your conduct post-termination. This has historically applied to senior executives, but is also becoming more and more common for this to also apply to more junior employees.

Typical restrictive covenants seek to prevent you from working for a competitor, poaching clients, contacts and employees away from the company and/or using confidential information learned during the course of your employment for a set period of time after termination of your employment. This is usually 6, but sometimes 3 or 12 months.

Whether such clauses are actually enforceable against the employee will depend upon the particular circumstances of the case. However, the following principles will usually be taken into account:

• The clause must not be any more restrictive than is reasonably necessary in the particular circumstances to protect the employer’s business. If the clause is too restrictive then it is likely to be struck out as unenforceable by the Courts. For example, a clause seeking to restrict your dealing with “all clients is likely to be too wide and therefore unenforceable.
• Your employer must be able to show that they have a legitimate business interest which requires protection.
• What is reasonable will depend upon your position within the business. For example, it will be more reasonable to seek to restrict your actions if you are a senior executive and regularly in contact with the customers and contacts of the business.

If you do have restrictive covenants in your contract, this could leave you unable to start work with a new employer for 6 or 12 months. If you ignore the restrictions you run the risk of your old employer issuing legal proceedings against you. They could seek an injunction restraining both you and your new employer from being in breach of the covenant.

Such applications are rare, but you should nevertheless not recklessly breach your covenants without first taking professional advice. It could otherwise be a costly mistake.

Temporary and Agency workers

Many legal rights are only available to employees and cannot be enforced if you are an agency worker. For instance, you can only claim for Unfair Dismissal if you are an employee and only employees are entitled to statutory redundancy payment. Agency workers may be deemed to be employed by the agency, or by the end client, but they may not in fact be employees at all.

The Agency Workers Regulations 2010, which came into force in October 2011, (implementing EU legislation) are intended to help to increase rights previously denied to agency workers as a consequence of their employment status.

The regulations entitle you as an agency worker to the same basic employment conditions as those which you would have were you employed directly by the client with whom you are placed, (subject to a 12 week qualifying period in the same job with the same hirer). You are guaranteed equal terms and conditions to employees when it comes to basic pay, holiday pay, working time, annual leave and rest breaks.

The regulations do provide an exemption to this equal treatment principle, known as “the Swedish derogation”. This ensures that agency workers cannot always claim a right to equal treatment when it comes to pay. In situations where you have a contract which provides for minimum pay between assignments when you are not working for a hirer, you will not be able to override this and claim equal pay.

Agency workers also have the right to claim for discrimination.

Need more advice?

Philip Landau who is an employment law solicitor and partner at London firm Landau Zeffertt Weir Solicitors is pleased to give JustEngineers.net users a free initial consultation on any UK employment matter.

If you have a specific enquiry or require further information in relation to your employment law rights, email Philip at pl@lzwlaw.co.uk or call him on 020 7357 9494.

DISCLAIMER
The information and any commentary on the law on this web site is provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying upon it, is assumed by either Jobsite or Landau Zeffertt Weir. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a solicitor about your case or matter and not to rely on the information or comments on this site.

By Philip Landau, employment lawyer and partner at Landau Zeffertt Weir Solicitors

Restrictions on working time

The Working Time Regulations 1998 govern working hours in the UK. The Regulations provide that you must not work on average more than 48 hours a week. You do, however, have the right to opt-out of this weekly restriction and many employers request this when asking you to sign your employment contract.

If you are working for more than six hours, you are entitled to a rest break of 20 minutes. You are allowed a period of 11 consecutive hours in each 24 hour period as daily rest and not. The regulations also entitle you to a weekly rest break of not less than 24 hours every 7 days, or alternatively 48 hours in each 14 day period.

Sick leave and entitlement

UK employment law does not provide you with a right to take time off in case of illness, however your contract is likely to make provision for your sick leave entitlement.

You are entitled to Statutory Sick Pay if you are unable to work as a result of illness. You will not, however, be able to claim SSP for the first 3 days of absence and the total entitlement is capped at 28 weeks.

Unfair Dismissal

The Employment Rights Act 1996 gives you rights if you have an unfair dismissal claim.

You have 3 months less one day from the date of termination of employment in which to make any claim to the employment tribunal, otherwise you will be time barred. There are only very limited exceptions to this time limit.

The right not to be unfairly dismissed is generally subject to a minimum qualifying period of employment. Employees employed prior to 6^th April 2012 require one year’s qualifying service to accrue the right to claim unfair dismissal, those employed after 6^th April require two years qualifying service.

Some unfair dismissals are automatically unfair and do not require a minimum qualifying period. Examples include being dismissed for taking maternity leave, claiming discrimination and whistle blowing.

There are five potentially fair reasons for dismissal:

• Conduct
• Capability
• Redundancy
• The continuation of employment would contravene a statute
• Some other substantial reason

Even if you have been dismissed for a fair reason, in order to avoid claims for unfair dismissal, your employer must ensure that they follow a fair procedure in dismissing you. The ACAS Code of Practice sets out principles which your employer should follow when it comes to handling a dismissal in a procedurally fair manner (i.e. carry out investigations and inform you of the problem). You have the statutory right to be accompanied by a colleague or Trade Union representative at a formal disciplinary or grievance meeting and you should be afforded the chance to appeal against any formal decision made.

Many employment cases are settled by way of a compromise agreement (shortly to be known as a settlement agreement). This is a full and final settlement document setting out the full terms and which you need to have signed by an independent lawyer.

Click here for further information on unfair dismissal

Redundancy

For your redundancy to be genuine, it will generally need to fall into one of three categories: the closure of a business, the closure of a particular place of work, or a diminishing need for employees to carry out a particular kind of work.

Redundancy should be a last resort and your employer is under a duty to consider alternatives. It may be that a reduction in agency staff or independent contractors, salary freezes etc could avoid the need for a redundancy. Your employer is also under a duty to consider the potential of suitable alternative employment. Whether an alternative position is deemed a “suitable” alternative will depend on several factors including how close the work is to your current job, your skills in relationship to the job and the pay, status, hours and location of the job.

In a redundancy scenario, your employer is under a duty to use objective selection criteria as far as is possible. Objective selection criteria include for example an analysis of disciplinary records, experience or capability. Your employer may leave themselves open to a discrimination claim if they select employees for redundancy on the basis of subjective characteristics such as gender, race, disability or working pattern (e.g. part time employees).

Your employer is under a duty to consult you regarding your selection for redundancy and inform you of any alternatives available. If your employer is making large scale redundancies (20 or more within a 90 day period), employee representatives need to be consulted under the process of collective consultation.

If you have at least two years continuous service, you will be entitled to a statutory redundancy payment. The amount you are entitled will vary depending upon your age, salary and length of service. You can claim half a week’s pay for each complete year of employment under the age of 22, one week’s pay for each complete year of employment between the ages of 22 and 40 and one and a half weeks’ pay for each complete year of employment age 41 and over. Weekly salary is capped at £430 per week from 1^st February 2012 and the number of years service which can be taken into account is limited to 20 years. It is important to note that if you are a successful candidate for an alternative role offered to you during the redundancy process, and the role is deemed suitable but you turn the job offer down, you may lose your right to statutory redundancy pay.

Click here for further information on Redundancy

Need more advice?

Philip Landau who is an employment law solicitor and partner at London firm Landau Zeffertt Weir Solicitors is pleased to give JustEngineers.net users a free initial consultation on any UK employment matter.

If you have a specific enquiry or require further information in relation to your employment law rights, email Philip at pl@lzwlaw.co.uk or call him on 020 7357 9494.

DISCLAIMER
The information and any commentary on the law on this web site is provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying upon it, is assumed by either Jobsite or Landau Zeffertt Weir. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a solicitor about your case or matter and not to rely on the information or comments on this site.

By Philip Landau, employment lawyer and partner at Landau Zeffertt Weir Solicitors

Holiday entitlement

You are entitled to a minimum of 5.6 weeks paid holiday each year (equal to 28 days including Bank Holidays). You must take holidays when it is convenient with your employer. There is no absolute right to take the holiday times of your choosing.

You cannot decide to take payment in lieu of holiday unless your employment has terminated in which case you are entitled to any accrued but untaken holiday for that year. Your employer may stipulate that your remaining annual leave is to be taken during your notice period, assuming you are working this or on garden leave.

If you are sick during a pre-booked holiday, new case law (and forthcoming legislation) provides that you may in some circumstances be able to claim back the holiday time for the period that you were sick and even roll that extra time into next year’s holiday allowance.

Notice periods

You are entitled to one week’s minimum notice if you have been employed for less than two years and one week per years of service if you are employed for two years and over. This week per year entitlement continues up to a maximum of 12 weeks.

The only situation in which you would not be entitled to any notice is if you committed a repudiatory breach of contract (i.e. gross misconduct). In these circumstances, you could be what is called “summarily dismissed” (legitimately dismissed without notice).

Poor Performance

Poor performance is essentially an allegation by your employer that your work is not up to scratch. You may be missing sales or other business targets set by your employer, or you could be making mistakes in your work. Capability is a potentially fair reason for dismissal. In order for a dismissal to be fair, however, your employer must also demonstrate that they have followed a fair procedure.

Before a formal disciplinary procedure gets underway, your employer should ideally address performance issues informally if possible, and such initial discussions would not usually appear on your disciplinary record.

The ACAS code of practice provides guidance for employers to ensure that performance issues are dealt with fairly at work, although your employer will often have their own specific policies (which should be no less than what is recommended by the ACAS code). Although the ACAS code is not legally binding, whether or not your employer abides by the ACAS code will be a factor which Employment Tribunals consider when determining whether a performance dismissal is fair. An employment tribunal can impose an uplift in damages you are awarded against your employer as a penalty for not following the Code.

The usual process for poor performance is for your employer to give a first and then final written warning before you are dismissed. You should also be given an opportunity to improve and are entitled to reasonable notice and sufficient evidence to be provided to you at disciplinary meetings. You are also entitled to appeal any disciplinary action.

Click here for more information about poor performance

Need more advice?

Philip Landau who is an employment law solicitor and partner at London firm Landau Zeffertt Weir Solicitors is pleased to give JustEngineers.net users a free initial consultation on any UK employment matter.

If you have a specific enquiry or require further information in relation to your employment law rights, email Philip at pl@lzwlaw.co.uk or call him on 020 7357 9494.

DISCLAIMER
The information and any commentary on the law on this web site is provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying upon it, is assumed by either Jobsite or Landau Zeffertt Weir. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a solicitor about your case or matter and not to rely on the information or comments on this site.

Over the next few weeks we’ll be posting a series of articles that cover all areas of your UK employment rights.

The first of this series by Philip Landau, will cover contracts of employment and discrimination.

By Philip Landau, employment lawyer and partner at Landau Zeffertt Weir Solicitors

Contracts of Employment

There is no legal requirement for your employer to provide you with a written employment contract. Your employer must, however, provide you with a written statement of employment terms within two months of your start date. This written statement should include details such as remuneration, terms and conditions regarding working hours, holiday pay, sick pay, notice periods etc.

The law implies duties into employment contracts. You as an employee are bound to provide faithful service to your employer, obey reasonable orders and exercise reasonable skill and care. In return, an employer has a duty to provide work and pay wages accordingly, provide a safe system of work and maintain the relationship of trust and confidence which exists between employer and employee.

Collective agreements are relatively rare. They tend to be most used in the public sector, or in industries such as manufacturing where unions are heavily utilised.

If your employer wants to change your contractual terms, they generally will need to do so by mutual agreement.

Discrimination

Discrimination is governed by The Equality Act 2010. This Act prohibits discrimination on the grounds such as age, sex, disability, pregnancy, race and religion. This is not an exhaustive list.

There are two types of discrimination, direct and indirect. Direct discrimination occurs when you are treated less favorably than someone else because of e.g. your sex and indirect discrimination is where a provision or practice is applied across the board which disadvantages e.g. women more than men. There is generally no defence to direct discrimination unless for instance it is an occupational requirement to be male (e.g. for an acting role). When it comes to indirect discrimination, an employer may have a defence that this is a requirement of the business (e.g. there have been cases where women are required to wear skirts to work which have been upheld because there is a reciprocal obligation on men to wear shirts and ties).

Unlike a claim for unfair dismissal (please see below), discrimination does not require a minimum qualifying period of employment. In fact, you can make a discrimination claims even as a prospective candidate. You have 3 months less one day from the alleged discriminatory act complained of to bring a discrimination claim at Tribunal.

Harassment is also unlawful under the Equality Act. This covers situations were an employer engages in conduct which creates an intimidating and degrading atmosphere for you in the workplace.

Click here for further information on discrimination

Need more advice?

Philip Landau who is an employment law solicitor and partner at London firm Landau Zeffertt Weir Solicitors is pleased to give JustEngineers.net users a free initial consultation on any UK employment matter.

 If you have a specific enquiry or require further information in relation to your employment law rights, email Philip at pl@lzwlaw.co.uk or call him on 020 7357 9494.

DISCLAIMER
The information and any commentary on the law on this web site is provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying upon it, is assumed by either Jobsite or Landau Zeffertt Weir. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a solicitor about your case or matter and not to rely on the information or comments on this site.