Addressing the top five employment law issues


Contract-writingWith the ever-changing legal landscape it’s not surprising that employers face the same common employment issues. Mark Stevens has the top five.

I have received an ET1 claim form

An ET1 form is the document an employee will use to take you to an Employment Tribunal. It is important you understand your obligations quickly and respond to the ET1 form swiftly. This is because you have 28 days from when the Employment Tribunal wrote to you in order to formally respond to the claim.

You should also take care that your response to the claim is complete and accurate. After the response is submitted the Tribunal is unlikely to allow any changes to be made.

As an employer you should take care to avoid treating an employee differently once they commence a claim; this could be perceived as victimisation that could result in the employee arguing that they have suffered a detriment for pursuing their legal rights. This could give the employee a claim for compensation for injury to feelings.

The penalty for failing to respond to an Employment Tribunal claim properly could be that the employee is awarded “default judgment” in their favour.

An employee is arguing about their holiday entitlement

Employees are entitled to 5.6 weeks’ annual leave per year (28 days per year) for those who work five days a week, a part time worker’s allowance is reduced pro rata. Public holidays can count towards the worker’s entitlement to annual leave.

Interestingly, there is no statutory right to bank or public holidays. However, if the contract says that staff are entitled to “28 days holiday plus bank or public holidays” then employees are contractually entitled to take bank or public holidays off.

Where an employee wants to take holiday at an inconvenient time, an employer can serve a counter-notice on an employee saying that their holiday request cannot be accommodated. A counter notice must be given at least as many calendar days before the proposed leave is due to commence as the number of days which the employer is refusing. Any unused statutory holiday expires at the end of the holiday year.

One of my employees has raised a complaint

It is likely that a complaint raised by an employee will amount to a grievance. You are best advised to seek to resolve concerns and problems informally; this could avoid the employee raising an allegation more formally, or from pursuing an employment tribunal complaint regarding their concern.

If the issue cannot be resolved informally, an employee should raise it in writing. A failure to raise the grievance in writing does not prevent an employee bringing a tribunal claim about their complaint. The employee could, however, be awarded less compensation if they do not raise a written grievance and give you a chance to respond.

Upon receipt of a written grievance you should investigate the employee’s complaint in accordance with the ACAS Code of Practice on Disciplinary and Grievance Procedures.

Employees can raise grievances about many types of issues or concerns, including discrimination and whistle blowing complaints. If you unreasonably fail to follow the ACAS Code, a tribunal may increase any compensation awarded to the employee by up to 25 percent of the total amount awarded.

My employee is on sick leave

For the purposes of administering statutory sick pay, you cannot insist on an employee providing a doctor’s certificate for the first seven days of sickness. A self-certification form is usually required during the initial seven-day period of absence. Doctor’s certificates, which have been rebranded as the Statement of Fitness for Work, will be required for longer absences.

You should maintain appropriate contact with employees on sick leave, without appearing to harass the employee to return to work.
You can, however, investigate the reasons for an employee’s absence but with sensitivity and care. The best way to initiate these investigations would be by way of holding a return to work interview when an employee is fit to return to work, or is likely to be fit in the short term.

Do bear in mind that in some cases, sick leave may arise as a result of an employee’s disability. Disability discrimination could arise in circumstances where an employee is treated less favourably because of their disability, or something arising from their disability. Be aware of your duty to make reasonable adjustments for a disabled person where those adjustments would help them overcome a disadvantage.

Note that there is no upper limit to the amount of compensation that an employment tribunal can award to compensate an employee for the injury to feelings that they have suffered as a result of the discrimination.

Dealing with misconduct issues

Since April 2012, new employees need two years service with an employer before they obtain protection against unfair dismissal. Once an employee has protection you will need to take care when taking action over an employee’s conduct.

To avoid an unfair dismissal finding, you will need to initially identify whether the concern relates to the employee’s conduct or their performance.
When dealing with conduct, you should be aware of the ACAS Code of Practice on Disciplinary and Grievance Procedures. Regardless of the seriousness of the allegation, or the impact upon the business, the code requires you to fully investigate the issues; inform the employee of the issues in writing; hold a disciplinary meeting or hearing before making a decision; inform the employee of the decision in writing; and provide the employee with a right of appeal.

An employee who successfully argues unfair dismissal may be awarded compensation for the loss of earnings they have suffered – up to a limit of 52 weeks’ pay or £76,574, whichever is the lowest. Remember that if you unreasonably fail to follow the ACAS Code, the Tribunal may increase the compensation by up to 25 percent.

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