Category: FAQ's on Employment and HR

A specialist employment law solicitor will be able to advise you on all aspects of employment law and ensure that you have the minimum recommended documents in place which all businesses employing staff should have.

At Thorneycroft Solicitors, our Employment & HR team advise businesses in a variety of ways, such as via stand alone or ad hoc arrangements, or more commonly through our annual retainer service, Employment Shield. This is a very competitive, valuable alternative to traditional hourly rates charged by solicitors and allows your business to budget properly for unlimited employment law advice and documents.

If an employee is guilty of gross misconduct then an employer is likely to be able to fairly dismiss them even if they haven’t previously received any warnings. The conduct must be serious enough to be considered gross misconduct and you should ideally have a Disciplinary Policy which contains clear examples of this.

It’s advisable for the employer to undertake a disciplinary process before deciding to dismiss an employee which will include carrying out a reasonable investigation prior to making a decision, otherwise any dismissal might be unfair and potentially in breach of contract.

There are lots of things which can go wrong when an employer decides to discipline an employee and if this is the case, it can be very costly to the business in terms of both money and reputation.

Any conduct issues should be properly investigated first and a fair disciplinary process should be carried out which involves giving an employee certain legal rights and complying with a Code of Practice.

To mitigate any risk arising from disciplinary action against an employee we recommended obtaining legal advice beforehand. Once your solicitor has advised you and ensures that you are fully prepared to carry out the process, it wouldn’t be usual for a solicitor to attend a hearing unless it’s a regulatory requirement.

If an employee is dismissed from their employment, it might be unfair which would entitle them to bring a claim to an employment tribunal if they have the necessary two years’ service.

A dismissal which is unfair can relate to either the decision itself, i.e. if dismissal was too harsh or not a reasonable response to the situation, or it can relate to the procedure followed if the employer did not reasonably investigate, consult and/or follow a fair process, or it might be both.

To decide if an employee was unfairly dismissed, this involves considering all of the circumstances and evidence to evaluate how and why the decision to dismiss was reached. If an employment tribunal finds that a dismissal was unfair the employee can be awarded financial compensation or their job back.

Generally speaking, a redundancy situation arises if a business closes completely, a particular workplace closes or there is a reduced need for employees to do a particular type of work.

If an employer is considering making employees redundant, they should firstly explain the situation to all affected employees and warn their jobs are at risk of redundancy. The employer should then consult with the employees on potential ways to avoid redundancy and if more than one person is affected it may involve selecting the redundant employee(s) from a pool based on objective criteria.

Once redundancy is confirmed, the employer should allow reasonable paid time off for the employee to find another job and give them the right of appeal against the decision.

Depending on the number of redundancies to be made within a particular timeframe, there may also be statutory minimum consultation periods which apply before any decision can be made.

Aside from a fair consultation and the ability to appeal the decision which should form part of a redundancy process as outlined above, employees have a number of financial entitlements.

If they have been employed by the business for at least two years, they are entitled to receive a statutory redundancy payment which is calculated based on their age and length of service as follows:

• Half a week’s pay for each full year they were under 22
• One week’s pay for each full year they were 22 or older, but under 41
• One and half week’s pay for each full year they were 41 or older

Length of service is capped at 20 years for redundancy purposes and there is also a statutory cap on weekly pay which is reviewed each year and is currently £525 (as at April 2019).

In addition, employees also entitled to a period of statutory or contractual notice, or payment in lieu of notice, as well as accrued untaken holiday entitlement.

Employees have a variety of employment rights including the following:

• The right to receive written particulars of employment;
• The right to receive the National Minimum or Living Wage;
• The right not to be discriminated against;
• The right to a safe place of work;
• The right to holidays and rest breaks;
• Numerous family and parental rights; and
• The right not to be unfairly dismissed.

Some employment rights depend on length of service with an employer. If employees believe that their employment rights have been breached they may be able to make a claim to an employment tribunal.

Employers have a number of duties and responsibilities to ensure compliance with various employment and health & safety laws including the following:

• You are required to provide a written employment contract within 8 weeks of the employment commencing;
• You must provide a safe place and systems of work, ensuring that workers receive necessary training to perform their role;
• You must pay workers a minimum rate of pay;
• You must not discriminate against workers and take all reasonable steps to ensure that others do not discriminate against your workers in the course of their employment;
• You are required to make reasonable adjustments for disabled workers;
• You must allow paid time off work in certain situations, e.g. to look for other work if notice of redundancy is served and to attend reasonable antenatal and adoption appointments; and
• You must not unfairly or wrongfully dismiss employees.

In reality, there is a lot of overlap between the two. HR stands for ‘human resources’ and, broadly speaking, relates to all things which apply to employees or workers such as, recruitment, training, pay and benefits and more straightforward workplace issues. These might typically be referred to as the “softer” elements of employment.

Employment law is practised by solicitors and is the legal framework made up of numerous laws, rules and regulations which apply to the employment relationship to support HR, manage issues and to stipulate the legal rights and responsibilities of both employers and employees which must be complied with. This requires a more specialist and in depth knowledge of the numerous laws which apply to different situations and the ability to ensure that steps taken by an employer do not breach the laws.

The short answer is no, but having somebody to manage HR in your business (whether via an in-house department or through an outsourcing arrangement) puts you in a much better position to be an excellent employer and attract the best talent for your business.

It also ensures that you act in compliance with the law and means that you’re fully equipped and able to handle those inevitable situations which at some stage will affect most businesses, such as disciplinary and grievance  issues, handling flexible working requests and correctly managing family rights.