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“I have worked for my employer for one year but today my boss came in to my office and told me that as the company had lost a big contract, they could no longer afford to employ me. I was told that I could go home immediately and that the company would give me one weeks’ pay. I was not given anything in writing and I feel that this is really unfair. Can I do anything about it?”

Unfortunately, whilst the above scenario does seem unfair, it is not necessarily unlawful. Under the Employment Rights Act 1996, employees only accrue the right not to be unfairly dismissed after two complete years’ service. Prior to accruing two years’ service, employees can be dismissed for any reason and without a reasonable process and it is still likely to be fair unless the reason is discriminatory or comes within a specific list of reasons which could give rise to a claim for automatically unfair dismissal. Those grounds include, having raised a health and safety concern, having blown the whistle about wrongdoings within the company, having gone on jury service, asserting a statutory right or trying to exercise a right to take family related leave.

If an employee is dismissed within that two year period, their employer is required to give them their normal pay and benefits up to the termination date including, if they have accrued holiday that they have not taken, a payment in lieu of that holiday. Unfortunately, where the individual’s length of service is less than two years there is also no right to written reasons for dismissal although in practice some employers will provide this as standard.

If you are dismissed within the first two years of employment, it may still be worth you taking advice if you believe that you have been discriminated against or automatically unfairly dismissed. You do still have rights in respect of your statutory and common law entitlements and should ensure that you are properly paid by your employer. However, the concept of an unfair dismissal does have a specific statutory meaning in law and whilst it seems unfair in common language, it is often not unlawful.

Please note this article should only be considered as guidance and should not be taken as specific legal advice. For further advice on this topic contact Kelly Gibson at Taylor&Emmet LLP at Kelly.Gibson@tayloremmet.co.uk and 0114 218 4307.

The post Common employment law misconceptions: Unfair dismissal appeared first on The Employment Law Blog.

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A headline in The Times last week caught my eye. “Tribunals gridlocked by surge in claims” it shouted at me, as I perused the paper over lunch.

Yes, we might be experiencing some delays in the tribunal service currently, but certainly here in South Yorkshire, to call them “gridlocked” would be a little overdramatic.

So what is causing the delays?

The problems are rooted in the Supreme Court’s decision to abolish fees for employment tribunals last year. Whilst this was great news for claimants, the rapid increase in cases was not fully anticipated.

When fees were introduced in 2013, the average drop in claims across the UK was 65%. The resulting empty courtrooms meant staffing and judicial resources were managed downwards, in some cases through natural wastage, in response to this reduced demand.

The challenge now is for the tribunal service to react quickly and efficiently to its growing workload, whilst still processing current cases. Simply put, additional staff are required as soon as possible, although I suspect budget and target restrictions imposed previously may be restrictive.

Increasingly, we are moving towards a situation where future claims will be handled electronically and the tribunal service may also have to consider what impact this ongoing strain on resources will have on its ability to embrace new technology and process these changes efficiently.

How can T&E help?

Employment solicitors, like me, see the negative impact tribunal delays have on clients and we are doing all we can to manage expectations, by limiting legal costs and alleviating the frustrations caused by having to wait six months or more to have your say.

At the outset, or in the early stages of a case, we can also explore the benefits and likelihood of seeking resolution before employment disputes reach a tribunal. If this can be achieved, there are obvious advantages for both sides in terms of avoiding lengthy, costly and stressful proceedings.

For an early discussion about your options, the practicalities of settling employment disputes, or to discuss a potential claim in more detail, don’t hesitate to contact me on (0114) 218 4000, email simon.brian@tayloremmet.co.uk or follow us on Twitter, @tayloremmet.

The post Don’t Despair at Tribunal Delays appeared first on The Employment Law Blog.

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If you are a regular reader of our blogs, you may have noticed our frequent updates regarding the pay workers receive to conduct sleep-in shifts and whether it should be paid at the relevant National Minimum Wage or National Living Wage (referred to collectively as “NMW” in this post) rate as opposed to a flat rate for staying the night. The main factors that determine whether a worker is entitled to the NMW for a sleep-in can be found in our most recent blog “Sleeping on the job: Clarification on sleep-in payments”:

The focus now has turned to enforcing those workers’ rights. In order to do this workers can bring a claim for failure to pay NMW themselves as either an unlawful deduction from wages in the Employment Tribunal or alternatively, as a breach of contract claim in the County Court. Which of these options is the most appropriate will depend on the circumstances. Currently, a Tribunal can only award two years’ worth of back pay but there is no fee to submit a claim, whereas a County Court claim requires a fee which is dependent on the amount of money claimed but it could be possible to claim up to six years’ worth of back pay in the County Court.

Failure to comply with NMW can also be investigated by HMRC under direction from the Department of Business, Energy and Industrial Strategy. HMRC action can be instigated by workers or HMRC may discover underpayment of NMW through company audits.

If HMRC find that there has been an under-payment of the NMW they may issue a Notice of Underpayment which requires the employer to reimburse workers who have not been paid the NMW in full and HMRC can also issue a fine for payment within 28 days of the notice. The fine can be up to 200% of the underpayment or up to £20,000 per worker. This amount may be reduced if the employer pays off the underpayment within 14 days of receiving notice of it. In addition to the above, HMRC have the power to “name and shame” employers that fail to pay NMW and can pursue criminal enforcement.

Due to the emergence of sleep-in worker cases HMRC suspended enforcement action against employers for failure to pay NMW in these circumstances as fines were likely to have a significant financial impact on care providers. The suspension of enforcement action did not impact on the ability of workers to bring a claim for underpayment of NMW in the Court or Tribunal.

On 1 November 2017 enforcement activity by HMRC resumed. A new scheme was opened at the same time called the Social Care Compliance Scheme which allows employers in the social care sector to voluntarily “opt in” to the scheme. Once an employer has entered into the scheme they will have up to a year to identify what they owe to workers which can be supported by advice from HMRC. Following this self-review period, employers have up to three months to pay workers. Where an employer does not opt into the scheme they may be subject to normal enforcement procedures if they have not paid the correct level of NMW for sleep-ins conducted by their workers.

This new scheme is an attempt to give workers their entitlement to NMW but at the same time prevent bankrupting social care providers, which is clearly a fine balancing act.

As you can see from the comments posted in response to our other blogs on this topic there has been a lively debate about this issue which you are welcome to join. If you would like specific advice about your situation or the implications for your business please contact us directly.

The post Enforcing sleep-in workers’ rights appeared first on The Employment Law Blog.

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“I have worked for my employer for one year but today my boss came in to my office and told me that as the company had lost a big contract, they could no longer afford to employ me. I was told that I could go home immediately and that the company would give me one weeks’ pay. I was not given anything in writing and I feel that this is really unfair. Can I do anything about it?”

Unfortunately, whilst the above scenario does seem unfair, it is not necessarily unlawful. Under the Employment Rights Act 1996, employees only accrue the right not to be unfairly dismissed after two complete years’ service. Prior to accruing two years’ service, employees can be dismissed for any reason and without a reasonable process and it is still likely to be fair unless the reason is discriminatory or comes within a specific list of reasons which could give rise to a claim for automatically unfair dismissal. Those grounds include, having raised a health and safety concern, having blown the whistle about wrongdoings within the company, having gone on jury service, asserting a statutory right or trying to exercise a right to take family related leave.

If an employee is dismissed within that two year period, their employer is required to give them their normal pay and benefits up to the termination date including, if they have accrued holiday that they have not taken, a payment in lieu of that holiday. Unfortunately, where the individual’s length of service is less than two years there is also no right to written reasons for dismissal although in practice some employers will provide this as standard.

If you are dismissed within the first two years of employment, it may still be worth you taking advice if you believe that you have been discriminated against or automatically unfairly dismissed. You do still have rights in respect of your statutory and common law entitlements and should ensure that you are properly paid by your employer. However, the concept of an unfair dismissal does have a specific statutory meaning in law and whilst it seems unfair in common language, it is often not unlawful.

Kelly Gibson

Please note this article should only be considered as guidance and should not be taken as specific legal advice. For further advice on this topic contact Kelly Gibson at Taylor&Emmet LLP at Kelly.Gibson@tayloremmet.co.uk and 0114 218 4307.

The post Common employment law misconceptions: Unfair dismissal appeared first on The Employment law blog.

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