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Below is a list of words used in this site with a explanation further down the page,
click the relevant link:
Compromise Agreement / Settlement Agreement
A compromise agreement is a written agreement between an employer and employee to
compromise certain statutory claims. The parties agree that in consideration for
a sum of money to be paid to the employee, he will not commence or continue with
disputes before the Employment Tribunal against the employer.
A settlement agreement is used to settle contractual disputes and claims. It is
possible for the parties to enter into one agreement covering both statutory and
contractual claims.
In order for the agreement to be binding on the parties, the employee must before
signing the agreement, receive advice from an independent adviser, who must then
endorse the agreement. The adviser can be either a:
- solicitor
- barrister
- (in certain circumstances) a legal executive
- independent trade union officer
- official employee of a trade union
- or someone authorised as competent to give advice on their behalf, or an advice
centre worker or volunteer certified as competent.
Contract of Employment / Written Particulars of Employment
/ Section 1 Statement
An employer is not obliged to provide a written contract setting out the full
terms and conditions of employment. The terms of contract can be construed
from:
- Express terms agreed between the parties orally or in writing.
- Implied terms, for example for business efficiency, or where it would be obvious
as to what was agreed by the parties; where the pattern of behaviour by the party
shows what the term is, or where the term can be determined by virtue of the
particular industry or sector, within which the parties work.
- Other main terms
which are implied into a contract of employment are:
mutual trust and confidence between the parties.
And employees duty of:
good faith and fidelity, service, competence, obedience,
due diligence and care, confidentiality.
- An employers duties are to: act reasonably, pay wages,
care for the employees health and safety,
provide a grievance procedure and deal with grievances promptly.
- Statutory terms are those introduced by legislation into the contract
to provide protection to an employee e.g. the minimum wage payable and maximum
hours that can be worked.
The employment contract can be varied by the parties agreement. A unilateral
variation by an employer is not a valid variation to a contract of employment.
If the employee fails to object within a reasonable time, he will be deemed by the Courts or Tribunal
to have accepted the variation.
In some circumstances if a variation is imposed on an employee, he may be justified in
resigning and claiming constructive dismissal or (if a completely new contract has
been entered into) bringing a claim for unfair dismissal in respect of his old employment.
Written Particulars / Section 1 Statement
Under the Employment Rights Act 1996
(ERA), an employer must within two calendar
months of an employee commencing employment,
provide him with written particulars of the main terms and conditions of his employment.
The terms and conditions that must be provided or where permitted under the ERA,
referred to in a separate document are:
- the names of the parties
- the date employment is to commence and the date for the purposes of calculating any
period of continuous employment
- details of how long temporary employment is expected to continue or the expiry date
- job title
- location of work
- hours of work
- pay details
- holiday details
- details of sick pay and sickness provisions
- pension arrangements
- notice period
- disciplinary rules
- dismissal, disciplinary and grievance procedures with details of who an employee
can report to if dissatisfied with the disciplinary or grievance decision
- contracting out certificate
- where the employee is to work outside the UK for more than one month, details of
the expected duration, the currency in which he is to be remumerated and all other
benefits, pay and terms and details to apply to for
the return of the employee
to the UK
- details of any other terms or conditions which are essential parts of the contract
The written particulars will not automatically amount to a contract, although
it may be strong evidence in some circumstances. Where an employer wishes
to change parts of the statement/written particulars, the employee should be informed in writing within
one month.
An employee is entitled to apply to the Employment Tribunal, if after two months
in employment, an employer has failed to provide a written statement or within
three months, following his dismissal from the employment.
Disciplinary Procedures
The Employment Act 2002 and the Employment Act (Dispute Resolution)
Regulations 2004, set out minimum statutory dismissal and disciplinary procedures. All
employers must now invoke the these procedures, where they consider there has
been problems with an employees' performance or conduct. Where an employer
fails to follow the dismissal and disciplinary procedure, the employee can claim
automatic unfair dismissal. An
employees contract of employment may give
them additional rights above the statutory rights.
The basic steps that an employer will be expected to follow as a minimum are:
- Setting out to the employee in a written statement, the conduct or circumstances
which he deems requires him to consider dismissal or other disciplinary action against
the employee and inviting him to a meeting to discuss the matter at a reasonable
time and location.
- Before the meeting, the employee must be informed of the basis for the employer
setting out the grounds referred to in the written statement. The employee must
be given a reasonable opportunity to consider his response to any information supplied
by the employer.
- The meeting must be held and the employee must take all reasonable steps to attend
it. Both employer and employee should have the opportunity to state their
case.
- Following the meeting, the employer must notify the employee of his decision and
the right to appeal.
- If the employee wishes to appeal, he must notify the employer, who will then invite
him to a further meeting. As far as is practicable, a more senior manager should
consider the appeal.
- Following the appeal hearing, the employer must inform the employee of his final
decision.
- The procedure is to be carried out with minimal delay.
- An employee must be notified of his right to be accompanied to disciplinary hearings
by a work colleague or trade union official.
A modified dismissal and disciplinary procedure applies when an employer has already
dismissed an employee for an act of gross misconduct. In these cases the
employer is required to:
- Set out to the employee in writing a statement detailing the misconduct, which
has resulted in the dismissal.
- Inform the employee of the basis for the employer considering him to be guilty of
the act.
- The employee must be given the right to appeal against the dismissal.
- An employee wishing to appeal must inform the employer who in turn must invite
him to attend a meeting.
- The employee must take all reasonable steps to attend the meeting. Both
employer and employee must be given an opportunity to state their case.
- Following the appeal hearing, the employer must inform the employee of his final
decision.
- The procedure is to be carried out with minimal delay.
- An employee must be informed of his right to be accompanied to appeal hearings by
a work colleague or trade union official.
Employment Tribunal
Employment Tribunal's (originally called Industrial Tribunal's) were established
to resolve disputes between employers and employees regarding employment rights.
A claimed is started in the Employment Tribunal by the employee completing
an ET1 form and presenting it at the Tribunal.
Employment Tribunal's were originally intended to be informal forums for the resolution
of disputes between employers and employees. It was considered that Tribunal's would
be faster and less formal than the Courts with the strict rules of evidence not
applying. As employment law has expanded in recent years, more people are
requiring legal advice for employment law disputes.
Grievance Procedure/Internal Grievance Procedure
The Employment Act 2002 and the Employment Act (Dispute Resolution) Regulations
2004,
sets out a minimum statutory grievance procedure which an employee must follow,
before commencing certain claims in the Employment Tribunal.
The basic steps that are now expected to be taken:
- An employee sends a statement of grievance in writing to his employer.
- The employer writes to the employee inviting him to a meeting to consider the grievance.
- Prior to the meeting, the employer must be informed of the basis for the grievance
and be given a reasonable opportunity to consider his response to it.
- The meeting must be held and the employee must take all reasonable steps to attended
it.
Both employer and employee should have the opportunity to state their case.
- Following the meeting, the employer, must notify the employee of his decision and
the right to appeal.
- If the employee wishes to appeal, he must notify the employer who will then invite
him to a further meeting. As far as is practicable, a more senior manager
should consider the appeal.
- Following the appeal hearing, the employer must inform the employee of his final
decision.
- The procedure is to be carried out with minimal delay.
- An employee must be informed of his right to be accompanied to disciplinary hearings
by a work colleague or trade union official.
Modified Grievance Procedure
Where an employee no longer works for an employer, the parties may agree to use
the modified procedure. Neither party can be compelled to follow this procedure.
The modified procedure involves:
- The employee sets out in writing to his employer the grievance and basis for it.
- The employer replies by sending a statement in writing to the
employee.
The employers grievance procedure should be used if it incorporates the statutory
grievance procedure.
Once an employee has raised his grievance in writing with his employer, he must
wait 28 days before commencing a claim in the Employment Tribunal. If the
grievance has not been submitted to the employer, or 28 days have not lapsed, then the claim
may be inadmissible in the Tribunal.
If the statutory dispute resolution procedures have not been followed, compensation
due to an employee may be reduced due to his failure to comply or the
compensation may be increased due to an employer's failure to comply.
Notice Periods
The notice of termination, what is required to be given by the parties is usually
specified in the contract of employment. There may be an implied term where
the contract is silent, that a reasonable period of notice will be given, taking
into account the employees age, length of service and the industry norm.
The Employment Rights Act 1996, has set out certain minimum period of notice that
all employees are entitled to receive, where they have been employed for at least
one month.
Where an employee has worked between one month to two years he is entitled to
one weeks notice. Where an employee has worked for two years or more, he
is entitled to one weeks notice for each complete year of service, up to a maximum
of 12 weeks.
Failure of an employer to give proper notice may entitle an employee to bring a
claim for wrongful dismissal in an Employment Tribunal or the Courts.
Personal Injury/Stress
Time Limits
- Employment Tribunal
A discrimination claim within the Employment Tribunal must be commenced within
three months of the act or omission complained of occurring.
Where discrimination has occurred over a period of of time, a Tribunal may in certain
circumstances consider there to have been a continuing act or a linked series of
acts. Time then runs from the last date of the continuing act or last linked act.
Claims relating to unfair dismissal, constructive dismissal and
wrongful dismissal,
must be commenced in the Employment Tribunal, within three months of the effective
date of termination.
Claims
relating to an employer's refusal to allow paternal leave, maternity, paternity,
adoption leave and flexible working must be commenced within three months of the
of the act or omission complained of.
There are numerous other claims, which may be commenced in the Employment Tribunal,
the vast majority of claims must be commenced within 3 months of the matter complained
of occurring. There is however, some variation in certain circumstances and you
are advised to check as early as possible the time limits applicable to your individual
claim.
The Statutory Dispute Resolution Procedures now requires an employee to write a
letter to his employer to commence the Statutory Grievance Procedure and then wait
28 days before commencing a claim in the Employment Tribunal. In certain circumstances,
this may have the effect of extending the time within which a claim can be commenced
in the Employment Tribunal.
The Tribunal is able to exercise its discretion to extend time to allow in a claim
which is out of time, where it is "just and equitable" to do so, or it was not "reasonably
practicable" for the claimant to have commenced his claim within the time limit.
- Civil Courts
A claim for breach of an employment contract can be commenced in either the County
Court or High Court, depending on the value and complexity of the claim. A breach
of contract claim must be commenced within six years of the breach complained of.
A personal injury claim must as a general rule be brought within three years of
the injury occurring.
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