What are fair reasons for dismissal?

The first you may know about a potential employment claim against your company is that an employee or former employee has made an early conciliation notification to ACAS. This would then trigger contact from ACAS to your company.
You are not obliged to take part in early conciliation with ACAS.

Employment cases are won and lost on witness evidence.

The evidence of the company’s witnesses must be their version of events. We can add value by ensuring that witness statements are well drafted, comprehensive, and clear.

We can also arrange witness familiarisation sessions for our client in advance of Employment Tribunal hearings.

If your employer knows about your disability, it has a duty to make reasonable adjustments to reduce or remove any disadvantage in the workplace. Examples may include adjusting premises for a wheelchair, producing manuals in braille format, providing additional IT software or altering your hours.

The obligation on employers to make reasonable adjustments is an important one which is often overlooked. We can explore with you whether your employer is failing to make reasonable adjustments and advise on steps to take to ensure that your rights are respected.

Not every adjustment will be reasonable. Much will depend on who your employer is and its resources but we can arm you with the correct knowledge to put you in a stronger position.

Following a disciplinary meeting you should be informed of the outcome in writing in line with your employer’s policy. A rushed decision could appear prejudged and highlight an unfair process.

Not being considered for a promotion because of your age is age discrimination. This is a clear example of less favourable treatment because of your age.

Employers must ensure that the selection criteria for making employees redundant are fair and objective and that the selection criteria do not disadvantage a particular group of employees.

It is not lawful to make an employee redundant because of their age, and if you think this could happen or has happened to you, you should seek legal advice as soon as possible so that you can take action to protect yourself.

Flexible working requests are often made by working mothers returning to work after a period of maternity leave. An employer should be open minded to this possibility and give any such request reasonable consideration. If you feel that your employer has not done this or is putting reasons forward about why the arrangement would not work which are not justifiable, we can explore with you whether this amounts to discrimination on grounds of sex.

This is a concern often voiced by our employee clients. However, from a legal point of view, speaking out about discrimination can offer protection. If you have complained about harassment you are then protected against victimisation which is another type of discrimination if you suffer some form of retaliation for making the complaint.

This could cover any sort of action by the employer including a demotion or dismissal, for example.

There are many proactive steps that can be taken to promote claim avoidance. Training for managers can be invaluable so that managers can spot the warning signs of employment law issues at the earliest possible stage. Where managers understand the importance of involving Human Resources teams quickly, claim avoidance can be achieved.

Being alert to employment issues before they escalate is the key. If an employee appears to be disgruntled, you may wish to take the initiative of investigating the matter and going down a grievance route with a view to resolving matters early.

An employment contract review before accepting a new role can be invaluable. Your new employer may expect an element of negotiation and this could be the best opportunity you have to negotiate favourable terms at the recruitment stage.

A constructive dismissal is a resignation which is claimed to be a dismissal by an employee because the employee is claiming that there was no option but to resign due to an irreparable breakdown of the employment relationship. This can be caused either by a single act by the employer or several actions over time culminating in a ‘final straw’.

No company is above the law. Employers are taking complaints about sexual harassment more seriously in the post #metoo era. Concerns about publicity and reputational damage for companies where sexual harassment is tolerated is real.

Harassment by colleagues in the course of employment is treated as also having been done by the employer. Often claims are brought against the employer and a named individual who has harassed another.

In this situation, employers need to show that they took all reasonable steps to prevent the harassment.

A disciplinary meeting should be held without unreasonable delay whilst allowing you a reasonable time to prepare. During the meeting you should be given the opportunity to respond to the allegations made against you and to put forward your version of events. As part of a fair process, your employer should consider your response before making any decisions relating to disciplinary action. A rushed decision by an employer about a disciplinary sanction can point to unfairness.

It is unlawful to discriminate on grounds of a mental or physical disability. One of the most common types of disability discrimination is failure to make reasonable adjustments. This is very relevant where an employer is imposing its standard processes on an employee with a disability who is placed at a significant disadvantage.

If ageist comments are being made about you, you may have a claim for harassment which is a type of age discrimination. For example, if a comment is made that you are too old to get to grips with technology at work, this would amount to age discrimination.

Dismissing regulated employees raises a host of additional considerations above and beyond a ‘standard’ dismissal. As regulated employees are required to meet the standards set out by the Financial Conduct Authority (FCA) to show they are ‘fit and proper’, the FCA needs a full explanation from you as to why the employment has terminated.

Dismissal for gross misconduct is the ultimate sanction.

On dismissal employees ordinarily receive pay and other contractual benefits during their notice period. Notice periods are set out as an express term in a contract of employment and if not a requirement to give reasonable notice will be implied. In any event, there are laws which require employers to provide minimum notice periods when terminating a contract of employment.

In a gross misconduct situation an employer is entitled to dismiss an employee without notice or pay in lieu of notice.

If you have been dismissed and need advice about payments on termination, we have the expertise to provide the assistance you need to ensure you receive your contractual entitlements.

All employers should promote an equal opportunities workplace. There should be a clear policy in place demonstrating a commitment to diversity at work.

A lack of diversity in the workplace could point to unconscious bias.

If you are pursuing a claim for race discrimination and your employer’s equal opportunities track record is poor or where your employer is only paying lip service to an equal opportunities policy, this could be relevant evidence for your case.

The TUPE legislation is designed to protect the interests of employees on a transfer of their employment. However, this does not always reflect the reality of the situation when an employee does not wish to transfer to a new employer as a result of TUPE.

You do not have to transfer to the new employer. You have the option to object to the transfer. However, this could leave you in a worse position if not handled properly where you lose all of your rights. A more strategic challenge to a TUPE transfer could improve your position in terms of a severance package. We can provide advice on this.

Your case may be document heavy and we can work with you to organise and list your documentation to ensure that document disclosure is an efficient and streamlined process.

Key decisions will need to be taken as to whether documents are relevant and you should also be alert to not disclosing privileged documents containing legal advice.

Document disclosure will require you to disclose all documents which are relevant to the issues in the case whether they are helpful or harmful.

It is important to put your best case forward from the start. Your company will be bound by the contents of its defence and the position it has taken in response to the claim which has been issued. Contradictions further down the line could damage credibility and ultimately result in losing the claim against your organisation. We can help you get the ET3 right.

We recommend that you contact us urgently if you receive an Employment Tribunal claim as there is a strict timeline of 28 days to enter a response. We can help you to prepare the ET3 response and put forward your best defence to the claim.

A failure to make adjustments for religious holidays or putting in place policies such as a requirement to work on certain religious holidays which unfairly disadvantages you amounts to discrimination because of religion or religious belief.

Employers can seek to justify their actions and claim that there is a legitimate aim behind their policy. The employment team at Vardags can advise you on whether your employer’s position is reasonable and in line with employment law.

Your employment contract may contain a clause requiring you to attend a consultation with an occupational health adviser nominated by your employer. Employers request this so that they can better understand the nature of an employee’s medical condition and to explore whether they can make reasonable adjustments. If your contract does not contain this clause, you could request an occupational health examination and remind your employer of its duty to make reasonable adjustments for you at work if you have a disability.

We are well placed to provide you with a view as to whether your employment contract is in line with industry norms. We are able to obtain market data on this where necessary.

New employers have limited ability to amend the terms and conditions of an employment contract for an employee whose employment has transferred under TUPE.

It is sensible to seek legal advice before attempting to make any variations to employment terms to harmonise contracts in a post TUPE workplace.

When an employee informs you that they wish to leave your company or make a grievance or bring a claim it may be better to negotiate a managed exit. Alternatively, a company may decide that the best way forward is to have a without prejudice conversation about an exit as things are just not working out, for whatever reason.

There will often be a number of discussions leading to the agreement of an exit package for an employee. Our highly experienced team are able to assist you in making these conversations as productive as possible whilst protecting your business interests. We can help you with scripts and e-mails to ensure your paper trail is well ordered and protects your company’s position.

Being dismissed after an extended leave of absence could still amount to a fair dismissal if your employer can argue that you are incapable of performing your role but this is very much dependent on the circumstances. If the correct processes in this situation are not followed, there could be a case for disability discrimination.

Your employer should have several meetings with you before proceeding to a dismissal taking steps to determine the medical position. For example, we would expect your employer to take into account: the prospect of you returning to work; the likelihood of the recurrence of the illness and the effect of absences on the rest of the workforce.

The employment team at Vardags can support you through a capability procedure at every stage.

If you have been falsely accused of misconduct or poor performance we can help you to challenge these allegations either by advising you in the background to help you raise a grievance and appeal against any disciplinary action that is taken, or by communicating directly with your employer on your behalf.

We understand the complexities and sensitivities of difficult employment law situations. Every employer is different and we will work with you to find the right approach in order to achieve the best possible outcome for you.

It is unlawful to pay men and women differently when they are performing like for like work or work of equal value. This includes basic pay as well as bonuses, rates for overtime, hours and benefits in kind. You will need to be able to point to a comparable colleague as part of your employment claim who you believe is being paid more than you.

Clearly, an employer needs to factor in the needs of its business and make decisions to ensure that there is sufficient cover at busy times and that the organisation runs effectively at all times. There is no legal right to work flexibly as such but employers are legally required to give serious consideration to requests for flexible working. Any refusal to accommodate flexible working needs to be for sound, logical business reasons.

There is no lawful compulsory retirement age under employment law. You are free to continue working over 65 and your employer cannot force you to retire because of your age.

Gender pay gap reporting has highlighted the discrepancies in male and female pay across many organisations and has opened a serious debate.

Whilst a gender pay gap does not in itself demonstrate unequal pay it may be the starting point to investigate any pay inequalities and discrimination.

We have significant experience in advising on equal pay claims and a strong track record of success in obtaining court orders requiring transparency of pay in the most difficult of circumstances, particularly in the financial services sector.

You should not be disciplined or dismissed for raising a grievance at work, especially if your grievance relates to discrimination. If this happens because you have complained about discrimination this amounts to victimisation.

The law also protects you from being victimised if you have 'blown the whistle' about certain categories of wrongdoing in the workplace. These laws are designed to encourage an open culture at work where employees do not fear speaking out about criminal offences and breaches of health and safety at work, for example.

If your employer has failed to investigate your grievance properly then the next step would be for you to submit a written appeal against the grievance outcome.

If you are dissatisfied with the outcome of your grievance following an appeal and you have exhausted your employer’s internal processes, the next stage is to notify ACAS (Advisory, Conciliation and Arbitration Service) of your intention to lodge a claim with the employment tribunal. ACAS will then give you the opportunity to enter Early Conciliation to attempt to settle your dispute to avoid issuing a claim. This is a compulsory step. You should be aware that there are strict time limits for making a claim to the tribunal and we can provide expert advice on this.

If your employer does not have a specific policy, then the ACAS Code of Practice for Discipline sets out the principles for conducting a grievance process.

It is a legal requirement for employers to have these policies and you could raise this as part of your grievance.

It may be more appropriate to raise the matter with the Human Resources department or at a senior level of management where the complaint is about a line manager.

You can make a claim for harassment even if the incident took place outside of the workplace at a work-related social event, for example, an office party.

The law interprets the workplace in this type of situation in a fairly wide context. If events take place in the course of employment the same rules could apply as in the workplace itself.

Witnesses can be helpful as can a note which details the incident as this could become important evidence should you decide to take the claim to the Employment Tribunal.

Sometimes redundancies are unavoidable whether due to a difficult economic climate or to achieve a streamlined restructure. The employment team at Vardags can help to manage your redundancy process from start to finish.

If you are making more than 20 employees redundant in a short timescale, special considerations will apply and a collective redundancy process will need to be followed.

Getting a redundancy consultation right is invaluable in terms of staff morale. Where employees understand the business rationale for making redundancies, change may be more easily accepted.

In order to succeed in a claim for discrimination, you will need to put forward facts from which it can be presumed that there has been discrimination. An Employment Tribunal will usually seek to take a wide view as to what can be established from these facts whilst taking into account the employer’s version of events. Once such facts have been established, the burden is then on the employer to disprove the discrimination claimed.

When employers fail to follow a reasonable disciplinary procedure and ambush employees this can lead to unfairness. Your employer should allow you reasonable time to prepare for a disciplinary meeting. What is considered reasonable will depend on the specific facts and circumstances of your case and your employer’s policy.

When a TUPE transfer is planned, your employer should appoint appropriate representatives such as trade union representatives or elected employees to run an information and consultation process. You should receive information about when and why the transfer will occur and any implications to your employment going forward such as a change of location, for example. Your new employer should provide this information to your current employer so that it can be provided to you.

A failure by an employer to inform and consult with employees on a TUPE transfer could result in compensation for each employee affected by this.

Whilst we can take a tough approach to our cases where needed, we also understand the benefits of mediation to resolve issues. The upsides of mediation are clear in terms of saving time, cost and preserving important working relationships or guarding against reputational damage.

One of the more complicated aspects of settlement agreements often centre around which payments are taxable and which payments can be made tax free. The £30,000 tax free concession applies to payments made by way of compensation. Contractual payments such as payment in lieu of notice should not be paid tax free and the treatment of notice should be clear from the settlement document to avoid issues further down the line.

Performance management is an essential part of making sure that the people side of your business is at the top of its game.

Proactivity in managing performance is key. Too often performance concerns are left to drift which in most cases only leads to more difficulties further down the line.

Most hearings are open to the public, and therefore the press are free to attend and report on the hearing. However, any press report must be fair, balanced, and accurate. If the press are mis-reporting the outcome of a hearing it is important to push back and have it corrected, before that mis-information becomes part of the narrative and is repeated elsewhere.

If you believe the other side is leaking false information to the media it is important to act quickly, which would often involve us engaging with the other side and the media to have untrue allegations corrected.

Your employer has a duty to make reasonable adjustments to help you at work.

If you have a disability which is not readily apparent to your employer, then making them aware could trigger the duty to make the reasonable adjustments needed.

There are only a small number of reasons an employer can put forward to justify a fair dismissal which complies with unfair dismissal law.

A fair reason could be poor performance, misconduct or redundancy for example.

The law protects you from being made redundant because of or in connection with a TUPE transfer. We can support you if you are facing dismissal at the time of a TUPE transfer or after the transfer has taken place.

There is no legal obligation for employers to provide a reference and in the case of gross misconduct it is not unusual for an employer to refuse to provide a reference. When providing a reference employers have a duty to take reasonable care that it is true, accurate, and fair.

If your current or previous employer has provided a misleading reference, they may be liable for any economic loss you have suffered as a result of any negligent misstatement.

Subject to the rules which restrict some employers (for example in the context of regulatory requirements), reference wording can usually be negotiated as part of an exit to assist with a smooth transition into your next role.

We know which barristers work best on our cases when it comes to representation at Employment Tribunals. Choosing a barrister is a key decision and we recognise that different barristers will suit different cases and clients.

Restrictive covenants will only be enforceable if they protect a legitimate business interest and are viewed as reasonable. There can be disagreement between an employer and employee about this.

If your restrictive covenants go further than is necessary to protect your employer’s business interests, they may be unenforceable. Restrictive covenants should not exceed 12 months in duration and this would only be appropriate for senior individuals in an organisation.

If you are prevented from earning a living by a restrictive covenant, it may be that the restrictive covenant in question is unenforceable. We can explore this with you. If your employment contract contains a non-compete restriction, this could prevent you from joining a competitor for a defined period following the termination of your employment. The length of the restriction is relevant to reasonableness and enforceability.

Unless there is good reason, for example health and safety requirements, then your employer should not restrict you from wearing religious symbols at work.

It will be relevant if the symbol is not strictly required by your religion, for example in the case of a cross which is worn by personal preference if you are Christian. For most religious symbols such as hijabs, turbans or bangles, you should speak to your employer about making an exception to the dress code to accommodate you.

If your employer is not willing to make such an exception, or to make adjustments to the dress code as needed, then you should seek advice as soon as possible.

Performance (or capability) is a potentially fair reason for dismissal but employers are expected to give employees the chance to improve by running a performance improvement process (PIP) before proceeding to dismissal. This normally involves setting targets for employees to reach over a defined period of time.

Many employers will have a policy or procedure in place for dealing with performance issues and dismissing employees. In the event of a claim by an employee an Employment Tribunal will take this into account when deciding whether an employer acted reasonably and fairly.

The TUPE legislation prevents your new employer from changing your terms and conditions of employment to harmonise its workforce. Even if you agree to any such changes and are incentivised to do so, this can be challenged at a later stage.
Terms of employment cannot be changed if the TUPE transfer is the only reason for change. Your employer may claim that there are other reasons for such changes. We can advise you on this and on your rights in a TUPE transfer situation.

If you are the new employer it is key that you are provided with the right information about the employees transferring to your company. You are also legally obliged to provide certain information to the company which currently employs the transferring employees in order that the employees can be briefed about their new employment position.

If your company is transferring employees under TUPE, we can assist with running a comprehensive information and consultation process in line with the TUPE legislation. We can also assist in managing the risk of compensation for a group of employees when there is a failure to inform and consult on a TUPE transfer.

The needs of your employer’s business may also mean that not every employee can work part-time and only on specific days. It is expected that there needs to be flexibility on both sides. Some employers may allow flexible working on a trial basis to explore whether a new arrangement is workable before making any permanent change to working hours.