Employment Law for You

A contract of employment cannot legally be changed without agreement from both employer and employee unless the contract provided otherwise. An employer should clearly state any proposed changes to the contract terms and employees should be given time to consider the changes so they can plan ahead.

If your employer decides they need to make a change to your contract they should make a ‘variation’ within the contract or a ‘flexibility clause’ to allow the change. Both the employer and the employee must agree to the change.

A company cannot reduce your working hours or give you a pay cut unless they have changed your contract of employment. Changes to contracts of employment must be agreed by both the employer and employee.

The only times where deductions from pay might be acceptable would be for National Insurance, tax or previous overpayment purposes. These, however, must all be outlined in your contract.

Discrimination defines the prejudicial treatment of someone from a particular group and can include race, age, religion or disability among others. Discrimination within employment is illegal in the UK. The following are just a few of the numerous ways someone can be discriminated against in the workplace:

• Sexual harassment or discrimination because of sex or sexual orientation
• Victimisation e.g. refusing to promote an employee if they have had time off for a grievance
• Age
• Parental Status
• Disability
• Gender Identity
• Making someone else discriminate
• Pregnancy i.e. unfavourable treatment whilst you are pregnant, breastfeeding or you have recently given birth

If you believe you have suffered any type of discrimination you should keep a record of all situations where the discrimination took place and seek legal advice as soon as possible

Reasonable adjustments for disabled people should be made for an employee if they are practical but changes will differ depending on the individual and their needs. An employer should ensure policies and practices do not put a disabled person at a disadvantage if they are a successful job applicant.

Adjustments can vary from ramps for wheelchair users to modifying performance targets.
If an employer fails to make the correct and reasonable adjustments for a disabled employee, then this is deemed discrimination, and a claim could be made.

Otherwise known as statutory rights, employee’s rights have been laid down to ensure all individuals are treated fairly in their place of work and have been put in place by the state (UK). Rights will differ depending on type of employment along with other variables and your employment contract.

Redundancy arises in just three ways: when there is a closure of the business, a closure of the workplace or the employer has less need for employees.

People commonly say that they have been made redundant. In fact, this is technically incorrect, as the redundancy relates to the job and not to the person.

Unfair Dismissal
Employers can dismiss people for a number of reasons, but to be a fair dismissal it must fall into one of the categories set out in the Employment Rights Act 1996:

• The employee lacked capability or qualification for the work they were employed to do.
• The employee was guilty of gross misconduct. Examples of this might include dishonesty, indecent or offensive behaviour or perhaps their failure to follow reasonable instructions.
• The employee can no longer legally perform their job. For example, if an employee’s job is as a driver and they are banned following a drink driving conviction. If the employer has no other work for them, they could be dismissed.
• Redundancy
• The employee must have been dismissed for ‘some other substantial reason’ known as SOSR. This is valid dismissal not falling into the above categories.

If you feel you have been unfairly dismissed, it is possible you may be entitled to compensation, however, claims have a qualifying period so if you should contact a solicitor as soon as possible.

Wrongful Dismissal
This describes a breach of contract from the employer. An example is failure to give the correct notice to an employee in accordance with the entitlement set out in their contract. Unlike unfair dismissal, there is no qualifying period to claim wrongful dismissal.

Constructive Dismissal
This occurs when the employer has committed a serious breach of contract, therefore allowing an employee to resign in response to that conduct. This is referred to as a ‘repudiatory breach’ by the employer and the employee is entitled to the same treatment as they would if they had been dismissed.

An example of this might be demoting an employee without their agreement or failing to pay an employee their correct wages.

Voluntary Termination of Employment
Otherwise known as voluntary redundancy, this is where an employer asks an employee to agree to terminate their contract in return for a financial incentive. The decision is left up to the employee and does not have to be taken.

Legal rights will be no different from compulsory redundancy and under the Employment Rights Act 1996 it is still classed as dismissal.

The Advisory, Conciliation and Arbitration Service (ACAS) is an organisation which endeavours to improve companies and the lives of employees through problem solving and setting out guidelines for organisations to follow. They provide free and impartial information on all aspects of employment law.

The ACAS Code of Practice outlines the disciplinary/grievance procedures and how they should be handled within a workplace. If an organisation decides not to follow procedures this is misconduct. An organisation must have reasons for not following the Code of Practice and if it reaches tribunal stage the reason will be thoroughly explored.

Most issues can be resolved before they go to court, particularly those which are minor misconduct. ACAS are able to provide a standard for reasonable behaviour within most cases but if there are some cases where formal action is required, investigations will need to be carried out to find case facts.

If in an employment tribunal it is proved your employer has not followed the ACAS code, compensation can be increased by up to 25%. Reasons your employer may be breaching the code are most commonly:

• They have not set out allegations made against you
• You have not been told about a possible disciplinary outcome
• Your employer has not provided copies of evidence against you
• You have not been advised that you can be accompanied to a disciplinary hearing
• You have not been offered a right of appeal by your employer
• Both the person who deals with your disciplinary and your appeal are the same

If you are an employee, you must follow the ACAS code yourself or your compensation could be reduced.

If you intend to make an Employment Tribunal claim, it is crucial ACAS are made aware so early conciliation can be organised. This is where an impartial ACAS conciliator can have a discussion with both parties in an attempt to resolve differences. This early conciliation period can be up to a month but an extended time of 14 days can be added if necessary.

This route to solving disputes is heavily encouraged as it is faster, cheaper and far less stressful than attending a tribunal.

Enforcing Your Rights
A first step to enforcing your rights should be trying to find out why your employer is not respecting the rights that you have. In many cases it is because an employer does not know the rights themselves, and are therefore, unaware their behaviour is unacceptable.

If you feel your rights have not been respected you should seek professional advice as soon as possible as the deadlines for employment tribunals are very short.

Settlement Agreements
Settlement agreements offer the benefit of certainty and a clean break between an employee and their employer. They can be produced for disciplinary/redundancy processes or can be used for bringing disputes to a close.

ACAS have a Code of Practice for Settlement Agreements which discloses how a settlement agreement should be operated and how best to negotiate between parties. This code is not binding but should be used as a guideline and if not adhered to employers would have to justify their reasons for this.