A BRIEF GUIDE TO YOUR EMPLOYMENT RIGHTS April 2021
For life's ups and downs
TABLE OF CONTENTS
INTRODUCTION
1
ABOUT US
2
PRE EMPLOYMENT CHECKS
3
CONTRACT OF EMPLOYMENT
4
NOTICE OF TERMINATION
5
UNFAIR DISMISSAL
6
IF YOU HAVE LESS THAN TWO YEARS' SERVICE
8
ACAS CODE OF PRACTICE ON DISCIPLINARY AND GRIEVANCE
9
DISCRIMINATION
10
SETTLEMENT AGREEMENTS
11
WORKING TIME
12
NATIONAL MINIMUM WAGE
13
SICK PAY
14
PENSIONS
15
FAMILY FRIENDLY LEAVE
16
HEALTH AND SAFETY
18
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INTRODUCTION The workplace can be a complex environment. You may have been unfairly dismissed. You may have been made redundant. You may be faced with the prospect of dismissal or have been offered a settlement agreement. Alternatively, you might still be at work but you’re facing an issue around performance or absence or find yourself in the midst of a disciplinary or grievance process. On the other hand, you might find yourself in the unfortunate position of experiencing discrimination or bullying at work. Our team of Employment Law specialists is one of the leading teams in Scotland with the knowledge and capacity to cover all work-related issues. We'll help you understand the options you have and the choices you can make. With insight and guidance you may be able to challenge the position you find yourself in or you may be able to negotiate a better package – coming to us you’ll find an expert, and an understanding and proactive ally. With more accredited employment law specialists than any other team in Scotland, we act for employees at all levels, including senior executives, and are known for the depth of our expertise and our responsiveness. We understand the emotional upset these issues can cause and are sympathetic to that as we work to get you the best possible result. Although every situation is unique, we’ve represented thousands of employees over the years and in any given case the issues we need to address will be ones we're very familiar with and experienced at handling through to a positive outcome. We understand the importance of providing fee clarity and value for money. In most cases we can meet with you and provide you with an assessment of your situation, including our view on your options and a recommendation, for a fixed fee of £375 plus VAT. We have put this guide together to provide you with some key information relating to your employment law rights. Hopefully, you won't ever need to take employment law advice but, if you do, you know where to find us.
Innes Clark Head of Employment Law 0131 247 1181 innes.clark@morton-fraser.com
Lindsey Cartwright Partner 0141 274 1141
David Hossack Partner 0131 247 1024
David Walker Partner 0141 274 1146
lindsey.cartwright@morton-fraser.com
david.hossack@morton-fraser.com
david.walker@morton-fraser.com
The following is a brief guide to employment law in Scotland, England & Wales. This states the legal position as of April 2021.
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ABOUT US Morton Fraser is a thriving, top ten Scottish law firm, delivering clear advice to businesses, the public sector, individuals and families. We have an all-encompassing service for individuals and families. At the same time as helping you to manage any unforeseen or unplanned event we’ll help support you now and plan for the future. Within our private client team, working on the personal side of things, we have over 70 specialists, including, two chartered and certified Independent Financial Advisers, Immigration, Personal Injury, Dispute Resolution, Family Law and in-house Mediation expertise. Why choose us? At Morton Fraser we will not only help to make your situation clear in terms of your employment rights and fight your corner where necessary, we will also discuss how the changes that are taking place affect other areas of your life and offer advice accordingly. For instance, if you receive a lump sum payment following a workplace dispute, you might benefit from financial advice with regard to investment or how the funds can best work for you. You might also want to review your pension situation and advice on how to continue building and contributing is key to maintaining and maximising your pension 'pot'. If you had life cover or critical illness benefits through work, these might need to be replaced to ensure the longer term security of your family. Our in-house Independent Financial Advisers can help you here. In addition, our lawyers and tax experts can advise you on any tax compliance issues and whether Wills and Powers of Attorney need to be updated. And if, as a result of your situation, you decide to move or downsize, our Estate Agency team in tandem with our legal conveyancers can act on your behalf. We can cover any and every legal and financial eventuality and complexity. Our on-going success is built on trust that has been won through strong lifelong relationships with our clients. And we are always delighted to start laying these foundations at the beginning of each new relationship. As a firm that has this breadth, we focus on delivering an excellent integrated service that can help you plan for every stage of your life and support you when any unforeseen events happen. Our specialists, each focusing on a particular area of law, property or investment, dedicate themselves to every case and are experts at getting excellent outcomes. We’re on your side, watching your back, helping you prosper. At Morton Fraser we have highlighted clarity as our guiding principle. This directs the way we communicate, the way we advise, the way we conduct relationships with our clients and the way we are totally transparent and upfront about our charges. This applies to all of our services from the straightforward to the more complex. Such clarity makes us refreshingly different. It gives our clients confidence. We don’t do work you don’t need. We guarantee that we will provide clear advice and transparent costs. You have our word. WELCOME TO CLARITY.
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PRE EMPLOYMENT CHECKS
An employer's first obligation is to check that you have the right to work in the UK. To meet this obligation it is likely that your employer will need to see your original passport or visa and they will check the document for any restrictions on your right to work. This is the case whether you are a UK national or not. They may also take a copy of the original document. The person who carried out the check should write on the copy document that they have seen the original and the date they saw it. They should then sign and date the copy. If you hold a temporary visa, your employer is likely to diarise the visa expiry date so that a follow up check can be carried out at that stage. You should also ensure that you are aware of when the visa will expire and, if necessary, take steps to have it renewed in plenty of time. Employers can be fined and directors can face criminal proceedings if these steps are not followed, so you should not be concerned if you are asked to produce this information.
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CONTRACT OF EMPLOYMENT An employer is under a legal obligation to provide you with written particulars of terms and conditions of employment. If you started work on or after 6 April 2020 this must be done on or before your start date. If you began work before 6 April 2020 the terms and conditions must be provided within 2 months of your start date. This is usually done by providing you with a contract of employment. When considering whether to enter into a new contract of employment, key points to consider, other than salary and benefits, include: •
how much notice does your employer have to give you to terminate?
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are there any covenants restricting what you can do when you leave?
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how much sick pay are you entitled to?
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how many holidays are you entitled to?
If no contract of employment is issued it is possible for an employee to make an application to an Employment Tribunal who can then determine what the terms and conditions are. It is also possible for compensation to be awarded if a contract of employment has not been provided, in certain circumstances.
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NOTICE OF TERMINATION When terminating your contract of employment, your employer needs to give you the greater of (1) the notice period set out in the contract of employment or (2) statutory minimum notice. The statutory minimum periods of notice are: Period of Employment
Notice Period
Less than one month
0
One month to 2 years
1 week
2 years and of 12 above weeks)
1 week for each year of continuous service (up to a maximum
You should give the notice period set out in your contract of employment and, if the contract is silent on this or where no written contract exists, you should give no less than one week's notice. As you can see below, if you have over two years' service you have the right to raise a claim for unfair dismissal irrespective of whether you have been given the correct period of notice or not.
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UNFAIR DISMISSAL If you have over two years' service you have the right to raise a claim for unfair dismissal. In calculating whether you have two years' service, a period of one week is added on (i.e. the equivalent of the statutory minimum notice period - see page 4 above). This means that if you have 103 weeks' service or more you can raise an unfair dismissal claim. There are a number of exceptions to this qualifying service requirement (see "If you have less than two years service" below) so it is always worth seeking initial advice on whether you may have a claim. Raising a claim •
If you wish to raise a claim for unfair dismissal then you must first attempt ACAS early conciliation within three months of your employment terminating. If early conciliation is unsuccessful or either you or your employer do not wish to proceed with it then an Early Conciliation certificate will be issued. You can then proceed to make a claim to the Employment Tribunal. The time limit for making a claim will be extended to take account of the early conciliation process. The requirement to trigger early conciliation applies for the vast majority of claims that can be made to a Tribunal. The time limits are short and are not straightforward and we recommend that advice is sought.
•
It may also be possible for you to raise a claim for constructive dismissal. This occurs where your employer has materially breached your contract of employment in such a way that you are entitled to resign and treat yourself as having been dismissed. Such a breach could, for example, include a failure to pay your wages or a breach of the implied term of trust and confidence that exists in all contracts of employment.
•
For more detailed information please see making an employment tribunal claim
Compensation •
The maximum unfair dismissal award is £105,813 (a basic award of £16,320 and a compensatory award of £89,493.
•
The cap on the compensatory award is the lower of £89,493 or 52 weeks' gross pay. A weeks' gross pay for the purposes of the statutory cap includes employer pension contributions but excludes benefits-in-kind and discretionary bonuses. Dismissals for whistle blowing or related to certain health and safety reasons remain uncapped, as do dismissals relating to unlawful discrimination.
•
The median unfair dismissal award in 2019/20 was £6,646.
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The amount a Tribunal will award for unfair dismissal will depend almost entirely on your salary and benefits at the date you were dismissed and how quickly you are able to obtain alternative comparable employment. This is because a Tribunal will compensate you for your loss rather than making any punitive award against your employer.
•
In certain specific circumstances, there is no limit on the amount that a Tribunal can award. These circumstances include dismissal for health and safety reasons or dismissal following the making of a protected disclosure (whistleblowing). In addition, there is no limit on the amount that can be awarded where the dismissal is related to unlawful discrimination (i.e. discrimination on the grounds of sex, race, disability, age, marriage and civil partnership, sexual orientation, gender reassignment, pregnancy and maternity and religion or belief).
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For more detailed information on compensation please see employment tribunal awards.
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In order to terminate your employment fairly the dismissal must be for one of the following reasons:
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Conduct;
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Capability (including competence to do the job and ill-health);
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Redundancy;
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Contravention of a statutory enactment; and
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Some other substantial reason
Your employer must also follow a fair procedure. If you believe you are at risk of being unfairly dismissed you should take advice sooner rather than later.
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IF YOU HAVE LESS THAN TWO YEARS' SERVICE You will usually require two years’ service before you can raise an unfair dismissal claim. There are though a number of exceptions to this requirement. These exceptions include (but are not limited to): •
Dismissals connected with pregnancy, childbirth, statutory maternity, paternity, adoption or parental or dependent care and leave;
•
Dismissal for health and safety reasons;
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Dismissal for a reason connected with rights under the Working Time Regulations 1998;
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Dismissal for a reason related to the national minimum wage;
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Dismissal for making a protected disclosure (whistleblowing); and
•
Dismissal for asserting certain statutory rights.
In addition, you also have protection from discrimination and you have the ability to claim for breach of contract against your employer even before your employment begins. For more information on this please see dismissing employees with less than two years service.
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ACAS CODE OF PRACTICE ON DISCIPLINARY AND GRIEVANCE The ACAS Code of Practice on Disciplinary and Grievance Procedures provides a guide for “expected” practice which employers should follow. If your employer does not follow this code it can be referred to in subsequent Tribunal proceedings and the Tribunal has the power to award an increase of up to 25% on any compensatory award where the employer has unreasonably failed to follow the ACAS Code. The Code can be found and downloaded from the ACAS website: www.acas.org.uk .
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DISCRIMINATION It is unlawful for your employer to discriminate against you on the basis of:•
age;
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sex;
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race;
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disability;
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sexual orientation;
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religion or belief;
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marriage and civil partnership;
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gender reassignment; or
•
pregnancy and maternity.
In addition, under the Equality Act 2010, it is unlawful to offer different and less favourable pay and conditions where women and men are doing equal work (i.e. the same work or work of equal value). It is also unlawful to discriminate against you on the basis that you work part-time or on the basis that you have a fixed-term contract. Discrimination claims can be made against your employer before, during and after your employment with them. If you believe you are being discriminated against you should take advice as soon as possible as the time limit for making a claim runs from the date of the act of discrimination and not from the date of termination of your employment.
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SETTLEMENT AGREEMENTS The more senior an employee, the more common it is for an employer not to follow any sort of formal procedure at all - see senior executive severance arrangements and dismissals. However, employees at any level can be asked by their employer to sign a settlement agreement. The effect of the settlement agreement is that you are signing away your right to make a claim against your employer following the termination of your employment in return, usually, for a financial payment. Agreed references and departure statements are also commonly included. In some cases these agreements are used when employment continues but your terms and conditions of employment are being amended. Your employer will require you to take independent legal advice on the terms of the settlement agreement, and usually they pay or contribute to your legal fees. It is more common than you think to be offered a settlement agreement or find yourself in a situation where you require to negotiate a departure from your work in difficult circumstances. In this situation your employer may instigate "pre-termination negotiations" with a view to agreeing exit terms. Subject to complying with certain requirements, these negotiations are inadmissible in any future Employment Tribunal claim. For more detailed information please see settlement agreements. It is important to seek advice on the terms of the settlement you are being offered to ensure you are being adequately compensated.
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WORKING TIME The Working Time Regulations 1998 apply to all "workers" which includes employees. The main features of the Regulations are as follows: •
Your employer must take all reasonable steps to ensure that you do not exceed the limit of an average of 48 hours per week over a reference period of, normally, 17 weeks;
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You can opt out of the working time limit of 48 hours by signing an agreement;
•
Your employer must keep a record of workers who have agreed to work longer hours;
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You cannot be forced to sign an opt-out agreement and can cancel one at any time by giving the notice as agreed between the you and your employer;
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Employers are required to keep certain records regarding the working time of their employees;
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If you work full time you are entitled to a minimum of 28 days’ paid annual leave per year (pro rata for part‑time workers);
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The 28 day period includes any public and bank holidays, i.e. the entitlement under the Working Time Regulations is 28 days in total not 28 days plus statutory holidays;
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Subject to specific rules for workers under 18, you are entitled to a rest break of 20 minutes if you work more than six hours;
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There is a right to have 24 hours off per week and at least 11 hours of uninterrupted rest each day;
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If you are a night time worker there are certain specific rules that apply including the right to a free health assessment. There are also more stringent rules in relation to the 48 hour working week and rest periods; and
•
If your employer breaches any of these rights then, depending on the circumstances, you may be able to bring a claim in the Employment Tribunal (having first complied with the ACAS early conciliation requirements).
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NATIONAL MINIMUM WAGE All workers, including employees, are covered by the national minimum wage legislation. The minimum hourly rates as of 1 April 2021 are as follows: •
National living wage rate for workers aged 23 and over: £8.91
•
Standard adult rate for workers aged 21 to 22: £8.36
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Development rate for workers aged 18-20 inclusive: £6.56
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Young workers' rate for 16 and 17 year olds: £4.62
•
Apprenticeship rate for apprentices under 19 years of age or those aged 19 and over but in the first year of their apprenticeship: £4.30.
These rates will change again in April 2022. The National Minimum Wage is enforced by HMRC. Complaints from workers or third parties about non-payment or underpayment can be made to the Government's Pay and work rights helpline or by submitting a standard form email to HMRC. If you do not receive the national minimum wage you are entitled to bring a claim for unlawful deduction of wages in an Employment Tribunal within three months of the date of the last deduction. There is a two year limit to the period that can be claimed for. You may also be able to bring a breach of contract claim in either the Employment Tribunal or the civil courts. Unlike a civil court claim, a claim for breach of contract in the Employment Tribunal can only be made once your employment has terminated. Claims brought in the civil courts can be raised in England and Wales up to six years after the breach, and, in Scotland, up to five years after the breach. You may also bring a claim to an Employment Tribunal if your employer unfairly dismisses you or subjects you to a detriment because: •
You became or are eligible for the national minimum wage or a particular national minimum wage rate;
•
You took any action to seek to ensure that you received the appropriate national minimum wage; or
•
Your employer is being prosecuted for an offence under the National Minimum Wage Act 1998.
There is no qualifying period required for an unfair dismissal claim in these circumstances. Subject to the rules on ACAS early conciliation, you have 3 months to bring a claim.
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SICK PAY Employers are only required to pay statutory sick pay (SSP) if you are absent because of sickness for a continuous period of four days or more. If you are absent for less than four consecutive days then you are not entitled to SSP. You may not claim SSP for more than 28 weeks in each period of sickness absence. Most employees qualify for SSP. However, if you are not entitled to SSP then you may be able to claim incapacity benefit instead. However, this claim is made via the Government and not via the employer. It is possible for an employer to pay you more than just SSP in the form of occupational or contractual sick pay. The specific sick pay terms will normally be set out in your contract of employment.
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PENSIONS The law relating to pensions changed with the implementation of “auto-enrolment”. Briefly, if you are an "eligible jobholder", your employer is obliged to automatically enrol you into a pension scheme from the employer's relevant staging date.
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FAMILY FRIENDLY LEAVE There are certain family friendly rights to which you are entitled. Very broadly, these are as follows: 1. Maternity leave If you are a female employee you are entitled to six months' ordinary maternity leave (OML) and six months' additional maternity leave (AML). OML is a period of 26 weeks' leave available to you, regardless of length of service, if you give birth and comply with the notification conditions. AML follows immediately after the end of OML and lasts for a further 26 weeks, giving a total entitlement of 52 weeks' statutory maternity leave. You will be entitled to statutory maternity pay (SMP) where you have: •
26 weeks' continuous employment with your employer up to and including the 15th week before the expected week of childbirth (EWC); and
•
average earnings of at least the lower earnings limit for National Insurance during the eight-week period ending with the 15th week before EWC.
If you satisfy the criteria above you will receive payment in respect of the initial 39 week period of maternity leave. The first six weeks are paid at 90% of your usual rate of pay (before tax). Thereafter, for the remaining 33 weeks of the paid portion of maternity leave, only the flat rate of SMP is paid. The current SMP flat rate is £151.97 a week. 2. Shared Parental Leave Shared parental leave (SPL) is completely separate from and does not affect the parental leave which is discussed at point 5 below. As mother or primary adopter you are entitled to 52 weeks of maternity/adoption leave. SPL allows you to give notice to end your maternity leave early and share what would have been the remainder of the maternity/adoption leave with the child's father or your husband or civil partner or partner; or, in the case of adoption, the secondary adopter (the "other parent"). Your partner for these purposes is a person (whether of a different sex or the same sex) who lives with you and with the child in an enduring family relationship but is not the mother's child, parent, grandchild, grandparent, sibling, aunt, uncle, niece or nephew. For more details see - Shared parental leave. 3. Adoption leave Adoption leave operates in much the same way as maternity leave and in the event that the conditions are met, if you are adopting a child you will benefit from Statutory Adoption Pay. This is paid for 39 weeks. 4. Paternity leave If you have a child born or expected to be born or placed for adoption and satisfy certain conditions you are entitled to two weeks’ paternity leave. This can be taken at any time up to eight weeks after the date of birth or placement for adoption. In order to qualify for paternity leave, you must be the father of the child or be married to, or the civil partner, of the mother or adopter of the child, or be his or her partner. In addition, you must have or expect to have responsibility for the upbringing of the child. You also require to give notice to your employer and must have 26 weeks’ continuous employment ending with the 15th week before the EWC. Paternity pay is paid at the same flat rate as SMP.
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5. Parental leave If you have completed one year's continuous employment and you "have, or expect to have responsibility, for a child" then you have a legally enforceable right to take unpaid parental leave while the child is under the age of eighteen, subject to an overall maximum of 18 weeks' leave in respect of each child (4 weeks per year in terms of the default scheme). 6. Flexible working and domestic emergencies If you have 26 weeks of service you are entitled to request a flexible working arrangement. You do not require to be a parent to qualify for this right. Your employer requires to consider any such request reasonably. ACAS has published a Code of Practice for Handling Requests to Work Flexibly in a Reasonable Manner. In addition, you have the right to time off (unpaid) to deal with certain domestic emergencies.
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HEALTH AND SAFETY Under the Health and Safety at Work etc Act 1974 certain obligations are placed on your employer with regard to health and safety such as the general duty on employers 'so far as is reasonably practicable' to protect the health, safety and welfare at work of all employees. In addition, employers must provide: •
safe plant and systems of work;
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safe methods for the use, handling, storage and transport of articles and substances;
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necessary information, instruction, training and supervision;
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a safe and well-maintained workplace, including safe access and egress; and
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a safe working environment with adequate welfare facilities. In
addition to its own employees, an employer owes statutory duties to: •
other people's employees working on the employer's premises; and
•
members of the public who are affected by the activities of the employer.
Section 7 of the Health and Safety at Work etc. Act 1974 also places a duty on you to take reasonable care of your own health and safety, and that of anyone who could be adversely affected by your 'acts or omissions at work' and to co-operate with your employer in taking steps to meet legal requirements.
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MAKE CONTACT For any of these services please contact us. Edinburgh: 0131 247 1000 Glasgow: 0141 274 1100 info@morton-fraser.com
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.The contents of this document are for information only and are not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Morton Fraser accepts no responsibility for the content of any third party website to which this document refers. Morton Fraser LLP is authorised and regulated by the Financial Conduct Authority.
