Free Legal Advice Employment Law

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A compromise agreement is a legally binding agreement either following the termination of your employment, or to bring it to an end. It usually provides for a severance payment by your employer, in return for which you agree not to pursue any claim you may have to an employment tribunal. Usually, the compromise agreement will also deal with the notice element in your contract of employment whereby you a paid in lieu. Click here to read more...

wrongful dismissal or unfair dismissal.

It is not enough to show merely that the employer has behaved unreasonably - it must be a fundamental breach of the implied term of trust and confidence between the employer and employee. Furthermore, the employee must have left because of the breach and must make it clear when he resigns that he regards himself as having been constructively dismissed.

Notice
An employer and employee can agree contractual terms as to the notice period. In the absence of any contractual term, the statutory minimum notice periods to be provided by the employer are as follows:

Between 1 month and 2 years - 1 week's notice required

Between 2 and 12 years - 1 week for every year worked up to a maximum of 12 weeks

For example, if an employee has worked 8 years, in the absence of any contractual provision, they would be entitled to 8 weeks notice.   

• Direct discrimination
• Discrimination by way of harassment
• Indirect discrimination
• victimisation

Such discrimination can apply at interview stage, the terms upon which you are being offered employment (or indeed whether you are offered employment at all), in promotion and transfer opportunities, or being dismissed or subjected to any other detriment.

• the employer's business, or part of the business, has ceased to operate; and/or
• the employer's business has moved to a different place; and/or
• the business's need for work of a particular type to be done has ceased or diminished.
• Redundancy is a form of dismissal. In order to claim redundancy, usually you must have been dismissed from your job.

If you resigned, you will not be redundant. You may, however, be able to argue that although you have resigned, you have actually been dismissed. This is called constructive dismissal and occurs when an employee has been put in a position where there is no choice but to resign, for example, where you have been made to take another job which is not suitable, whereas you should have been offered redundancy.constructive dismissal and occurs when an employee has been put in a position where there is no choice but to resign, for example, where you have been made to take another job which is not suitable, whereas you should have been offered redundancy.

Sex Discrimination
The Sex Discrimination Act 1975 makes discrimination against a person on grounds of their sex illegal. Sex discrimination can be direct or indirect. It can also take the form of victimisation. The Act does not require any qualifying period of employment. An employee is covered from the moment that they apply for a job. This protection continues throughout the period of employment, and may also cover the provision of references for a former employee after the employment has terminated. It covers not just employees but workers, agency workers and often also the self-employed. Click here to read more...

Quite often, there is a contractual right to sick pay whereby the employer spells out what the employee is to receive when sick and over what period. In the absence of a contractual provision, employees are entitled to receive Statutory Sick Pay ("SSP") from the employer. The entitlement limit is, generally, 28 weeks in a 3 year period.

Employees are protected from being unfairly dismissed, providing they have been employed for at least 1 year. There are limited exceptions, for example where the claim relates to sex or race discrimination, where no time period applies.

To successfully defend an unfair dismissal claim, the onus of proof is on the employer to show that the reason, or if more than one, then the principle reason for dismissing an employee falls into one of the categories set out in the Employment Rights Act 1996.

These categories are as follows:

• The employee lacked capability or qualification
• The dismissal was a result of the conduct of the employee
• There was a genuine redundancy
• The continuation of employment would contravene a statute
• Some other substantial reason

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This is essentially a breach of contract claim by the employee. If the employer acts in breach of the employee's contractual obligations or in breach of his minimum statutory obligations to give the employee notice (see notice) the employer then becomes liable to pay the employee damages for wrongful dismissal. This is quite distinct from the employee's right to claim compensation for
Where an employee has, for example, a 3 month notice clause in his contract and the employer dismisses the employee with immediate effect, then prima facie the employee is then entitled to make a claim for wrongful dismissal for damages which will reflect the 3 month notice that he should have received. The employee will also be entitled to other contractual benefits, such as accrued holiday pay.

 By Philip Landau, partner, Landau Zefferrt Weir, Solicitors. 10, Bickels Yard, 151-153, Bermondsey Street, London Bridge, London SE1 3HA. Tel: 020 7357 9494;

 e-mail: pl@lzwlaw.co.uk

DISCLAIMER

Wrongful Dismissal

Unfair Dismissal

Sickness

Redundancy occurs where:

Race Discrimination

Race discrimination cases are rarely straightforward. It is rare for employers to openly treat people differently because of their race.

It is the task of an employment tribunal to decide whether the real reason for different treatment is in fact, race.

Racial discrimination can arise in any of four ways:

Dismissal and Grievance procedures

The new statutory minimum grievance and disciplinary procedures came into effect on 1 October 2004.

Employers and employees alike are generally required to follow the new procedures before taking any case to an employment tribunal. That is not to say that you cannot obtain professional advice in the meantime.

Constructive Dismissal

Where an employer has committed a serious breach of contract, the employee may be able to claim constructive dismissal entitling the employee to resign as a result of the employer's conduct. This then enables the employee to make claims for compensation for Compromise Agreements

Bonuses

Often, there is uncertainty about whether a bonus which is expressed to be "discretionary" in an employee's contract truly gives the employer an unfettered discretion, or whether that discretion must be qualified. This is particularly relevant where an employee is under noticee or has just left employment. The employee may have already performed well for the bonus year, but has no future with that employer. Can the employer then exercise its discretion to avoid payment of bonuses for past performance?