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SECTOR: Business


This covers drafting terms and conditions of employment, policies and procedures, and departures. We advise in corporate transactions and TUPE issues. We supply specialist training, and offer an employment law protection package specifically for business. We provide employment tribunal representation including complex diversity and discrimination issues.

We are able to provide specialist employment advice at the highest level whilst offering genuinely competitive fee structures. Above all, we appreciate the need for a business to protect its reputation and resolve issues quickly, confidentially, and without impacting upon performance the performance of a business and the morale of the persons within it.

  • Settlement agreements
  • Equality and Diversity
  • Contracts of Employment
  • Employment Tribunal Representation
  • TUPE
  • Business Restructure and Reorganisation
  • Post Termination Restrictions
  • Equal Pay
A former employee is threatening to sue for unfair dismissal, even though they resigned. Do they have a claim?

Possibly. Unfair dismissal doesn't just cover those cases where an employer dismisses an employee. It also includes those cases when a fixed term contract (or a limited term contract covering a specific event) comes to an end, and when the employee resigns because of something that the employer has done. This is known as 'constructive dismissal'. In order to succeed with this claim, the employee must show that the employer has breached the contract of employment. This could be because of a cut in pay, a change in hours or duties, or in response to bullying and harassment.

If an employee brings a claim in the Employment Tribunal, can we recover our cost

This is unlikely. The Tribunal does have the power to order one party to pay another partys costs if they have behaved unreasonably in the proceedings. This power is rarely used. In 2011/2012, the Tribunal system disposed of 110,800 cases, and only made 1,411 orders for costs (about 1.25%). The average award of costs was £1,292. This may change as the Tribunal system is introducing fees, which both the employer and employee will need to pay, and the system of financial penalties, which will be imposed on unsuccessful employers and defendants.

A case against us is totally groundless. Will it go all the way to a hearing?

Currently, it probably will. The Tribunal does have the power to strike out a case if it is has no reasonable prospect of success. This is usually when there is a fundamental problem with the case, for example if the employee does not have the appropriate length of service, has delayed too long before bringing a claim, or does not qualify to bring the claim. This is due to change shortly, as the Tribunal will be bringing in a sift procedure, and Employment Judges will be encouraged to look at weaker cases, and weed them out.

An employee has brought a claim against my company for unfair dismissal and they have asked for £74,000 compensation. Are they likely to get this

This is unlikely. The Tribunal will make two separate awards. The first (the Basic Award) is the equivalent of an employees statutory redundancy entitlement. The second (the Compensatory Award) is compensation for any financial losses caused by their dismissal. From 1 February 2013, this is capped at £74,200. Most awards are much less than this. In 2011/2012, the median award was £4,560.

The largest part of the Compensatory Award is usually for an employees loss of earnings and pension. If they find work, the compensation will be lower. If they are unlikely to find work for some time, then the Tribunal may order you to pay them compensation until they should find suitable work elsewhere.

We have an employee who has been in post for some time but they are underperforming. What can we do?

It is often extremely difficult to tackle poor performance, especially when someone has been in post for some time. Unless there is some particular reason why an employees performance should dip, and if no recent appraisals have been carried out, most employers will not want to tackle the problem head on.

An Employment Tribunal would expect to see a transparent appraisal process, an opportunity for the employee to improve their performance, the appropriate support and training put in place if necessary, and a review at the end of this period. Only then should the decision to dismiss be taken. As this can be time consuming, and demotivating, many employers grasp the nettle, and consider a severance package. If an employee signs a Compromise Agreement (soon to be renamed 'Settlement Agreement'), they can give up their rights to sue their employer, in return for a sum of compensation. This is normally tax exempt up to £30,000. Compromise Agreements are also usually confidential.

I have an employee who keeps taking occasional days off, arriving late, and asking for authorised leave. How can I tackle this?

The best way to tackle absence and attendance issues is with good HR management. If an employee has a suspicious pattern of absence, for example if they have sick days before or after weekends, bank holidays or annual leave, then you should discuss this with them. If the pattern continues, it can be treated as a disciplinary matter. ACAS provides helpful guidance on dealing with disciplinary procedures. You should start with a sanction such as a written warning, and then move to a final written warning, and potentially dismissal if the problem continues.

  • Robert Gibson
  • Sally Lomas Fletcher
  • Angela Carver
  • Laura Wilson

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