Age Discrimination
Under the Employment Equality (Age) Regulations 2006 it is unlawful to discriminate
against applicants and employees on the grounds of age. Under Regulation
3, A discriminates against B if:
|
on the grounds of B’s age, A treats B
less favourably than he treats or would treat other
persons; or |
|
A applies to B a provision, criterion or practice
which he applies or would apply to persons not of
the same age group as B but:-
i which puts or would put persons of the same
age group as B at a particular disadvantage when
compared with other persons; and
ii which puts B at that disadvantage,
iii and A cannot show that the treatment or as
the case may be, provision, criterion or practice
to be a proportionate means of achieving a legitimate
aim. |
Age
includes apparent age.
Basic Award
A Basic Award is awarded where a Tribunal finds an unfair
dismissal. It is calculated in exactly the same way
as a payment. The principles of calculation remain
the same, although the maximum amount of a weeks pay is oftern varied from one year to the next.
1 |
Contributory conduct. |
2 |
Unreasonable refusal of offer of re-instatement. |
3 |
Where the dismissal is by reason of redundancy
and the Claimant has already received a statutory
redundancy payment. |
Where
the statutory procedure has not been followed the basic
award can be increased or decreased depending on whether
the fault rests with the employer or employee.Certain
cases involving dismissal relating to trade union reasons
or health and safety have a minimum basic award.
Chronology
A chronology sets out the key dates in relation to a
claim. It is useful to provide the Tribunal with information
about the sequence of events and should be provided
in advance of the hearing if possible.
Claim Form
A claim form, also known as an ET1, is the form, which
a person wishing to make an employment related claim,
completes and sends to the Employment Tribunal to initiate
the claim.
Claimant
A Claimant is the individual or organisation (in the
case of a Trade Union claim under section 188, for example)
who presents a complaint to an Employment Tribunal.
Compensatory Award
The Compensatory Award is potentially the largest part
of an Unfair Dismissal award. It aims to compensate Claimants
for their financial losses - mainly loss of net earnings
while unemployed after being unfairly dismissed, but
it can include amounts for ongoing loss (where the Claimant’s
new job is at a lower rate of pay than their old job)
and expenses incurred in looking for another job, attending
interviews etc. The Compensatory Award can be up to £65,300.00*,
although in a limited range of cases, for example dismissals
for health and safety reasons, it can be unlimited. The
Compensatory Award can not, according to the House of
Lords, compensate an employee for injury to feelings
caused, for example, by the manner of dismissal.
* £ 65,300.00 for dismissals occurring
between 1 February 20010 and 31 January 2011.
The cap for |
2009 - 2010 was £66,200 |
|
2008 - 2009 was £ 63,000.00 |
| |
2007 - 2008 was £ 60,600.00 |
The cap is reviewed every year and increases
on 1st February.
A compensatory award is awarded in most cases where a
claim for unfair dismissal is successful.
Circumstances where no compensatory award is made:
 |
100% contribution |
|
100% chance dismissal would have occurred |
Circumstances where a limited compensatory
award is made:
|
|
Where a finding of contribution is made below 100% |
|
Where a Tribunal finds that dismissal may have
occurred but put the percentage at below 100% |
Complaint
The proper term for a claim to an employment tribunal
is a complaint. Strictly speaking, one does not make
a claim; one presents a complaint to the Employment Tribunal.
Contract of employment
In order for a contract of employment to be formed there
has to be three constituents:
1. Offer
2. Acceptance.
3. Consideration.
Where a prospective employee accepts the offer of a new
job, the consideration is handing in notice to the old
employer.
Contribution
Where a claimant has contributed to his dismissal by
his “blameworthy conduct” a Tribunal can
reduce the basic and compensatory awards by a percentage
up to and including 100%
Deductions from Pay
Employers are prohibited from making deductions from
wages under Part II of the Employment Rights Act 1996
unless:
1. the deduction is required or authorised to be made
by virtue of a statutory provision (e.g. PAYE tax or
national insurance) or a relevant provision of the worker’s
contract, or
2. the worker has previously signified in writing his
agreement or consent to the making of the deduction
This does not prevent deductions to reimburse employers
for an overpayment of wages or expenses. However, other
deductions are unauthorised deductions which are actionable
by the worker.
Dependant Leave
An employee is entitled to take time off for the following
purposes during working hours:
1. to provide assistance on an occasion when a dependant
falls ill, gives birth or is injured or assaulted,
2. to make arrangements for the provision of care for
a dependant who is ill or injured,
3. in consequence of the death of a dependant,
4. because of the unexpected disruption or termination
of arrangements for the care of a dependant, or
5. to deal with an incident which involves a child of
the employee and which occurs unexpectedly in a period
during which an educational establishment which the child
attends is responsible for him or her.
Unless the employee’s contract
states otherwise such time off is unpaid. To exercise
the right the employee must tell the employer as soon
as reasonably practicable the reason for the absence
and how long he/she expects to be absent.
The definition of dependant means spouse, civil partner,
child, parent or other person who lives in the employee’s
household (other than a tenant, lodger or employee).
The right is extended in the case of illness or injury
in (a) and (b) to anyone who reasonably relies on the
employee in those circumstances.
If an employer unreasonably refuses time off under these
provisions an employee can complain to an Employment
Tribunal within 3 months of the refusal. The Tribunal
can award such compensation as it considers just and
equitable including any consequential loss.
Detriment
A detriment is a disadvantage. If an employee, prospective
employee or worker is subject to a detriment in the
workplace that can amount to an act of discrimination
provided the test for discrimination is met.
Discrimination
Discrimination is unlawful if it is on one of the following
grounds:
1. Sex or marital status, gender etc
2. Race, colour, nationality, ethnic or national origins
3. Gender Reassignment
4. Religion or Belief
5. Sexual Orientation
6. Disability
7. Age
Each of the above has wider definitions in statute.
Dismissal
A dismissal is statutorily defined as either:
1. Dismissal by the employer with or without notice.
2. Expiry of a Fixed Term Contract without renewal.
3. Constructive Dismissal: which is resignation by the
employee in circumstances where the employer is in material
breach of a fundamental term of the contract of employment.
Employment Judge
Is the new name for an Employment Chairman from 1st December
2007. The Judge or Chairman can either sit alone or
more often than not with two lay members. The Judge
is the one with the legal background who oversees the
proceedings and deals with the legal issues. When the
panel of three sit then the decision comes from the
panel although it will be drafted and delivered by
the Judge himself.
The Judge has case management powers, discretion and
can make certain decisions alone.
Employment Tribunal
The Employment Tribunals are judicial bodies who determine
disputes between employers and employees (or unions)
over employment rights.
The Employment Tribunals are courts of first instance
and their decisions are not legally binding on other
Employment Tribunals. If an Employment Tribunal makes
an error of law, its decision may become the subject
of an appeal to the Employment Appeal Tribunal.
More information can be found on the
Employment
Tribunals Service website. The website gives
information on presenting a complaint, defending a complaint
and the tribunal process, as well
as providing the mandatory forms that must be used for
presenting or defending a complaint.
European Court of Justice
The European Court of Justice, which is located in Luxembourg
city, is the highest Court in the European Union. It
has the final say on matters of EU law in order to
ensure equal application across the European Union
member states.
Article 177 of the EC Treaty declares that references
to the European Court of Justice may be made by any court
or tribunal of a Member State. The reference will take
the form of a question for determination.
Express Terms
Express Terms are terms of a contract that are expressly
agreed between the parties. Express terms can be agreed
in writing or verbally.
If a term is not express, it may nonetheless form part
of a contract if it is an Implied Term.
Final Written Warning
A final written warning is usually the last stage of
the disciplinary procedure before dismissal. If an employee
is given a final written warning for a first offence
this is normally because the offence constitutes Gross
Misconduct. The employer could have dismissed but has
instead given the employee a second and often final chance.
If the employee has committed an act of misconduct a
final written warning often follows a written warning.
There is a common misconception that the warning has
to be for the same thing in order to proceed to the next
stage of the disciplinary procedure. This is not the
case and the warning can be for a different unrelated
offence.
Fine
An employer can be fined in the criminal court for a
range of employment related offences including employing
illegal immigrants, health and safety offences and failing
to comply with HR1 requirements in a collective redundancy
situation.
Fixed Term Contract
Fixed Term Contract is defined by the Fixed-Term Employees
(Prevention of Less Favourable Treatment) Regulations
2002 as a contract of employment that will terminate:
1. on the expiry of a specific term (for example, after
6 months or on 25 June 2007)
2. on the completion of a particular task (for example,
when project X is complete)
3. on the occurrence or non-occurrence of any other specific
event other than retirement.
Fixed term employees are employees employed on a fixed
term contract. Such employees are protected from less
favourable treatment on the ground that they are fixed
term employees. Non renewal of a fixed term contract
is a dismissal.
Garden Leave
Garden Leave, sometimes also called Patio Leave, refers
to an employee who is under notice (whether because
he has been dismissed or because he has resigned) not
being required to work during his notice period.
While on Garden Leave, an employee is not permitted to
work for another employer, but receives full pay subject
to tax and national insurance as normal.
Garden Leave can be used by employers to protect their
business interests by keeping employees under notice
out of the business and preventing them from working
for a competitor straight away. By the time the notice
period, and hence the Garden Leave, is over, the employee’s
knowledge of the business will have started to become
out of date and will pose less of a threat to the employer’s
business. It is very common for sales people to be put
on Garden Leave when they resign.
Holiday
The amount of holiday an employee is permitted to take
is governed by the Contract of Employment.
The Working Time Regulations provided for a minimum amount
of holiday as 28 working days. There was no distinction
between ordinary working days and bank holidays. As such
the 28 days could include bank holidays.
Where an employee is part-time holiday entitlement is
pro-rata.
Holiday Pay
There are two types of Holiday Pay - Statutory Holiday
Pay (provided for by the Working Time Regulations 1998)
and Contractual Holiday Pay (provided for in each employee’s
contract of employment). Each type of Holiday Pay offsets
the other.
HR1
A HR1 is the form that employers must use to notify the
secretary of state (or in practice the BERR, formerly
the DTI) that they propose to dismiss 20 or more employees
as redundant.
Implied Term
Terms in contracts can be express or implied. As a general
rule, implied terms can not override express terms. However,
sometimes it can be argued that although an implied term
does not override an express term, the implied term is
really evidence of a variation to the original contract
rather than an implied term of the original contract
itself.
Terms can be implied by:
1. Conduct
2. Officious bystander test. To pass this test, a term
must be so obvious that an officious bystander looking
at the facts would conclude that the parties intended
the term to have contractual effect
3. Custom. To be implied by custom, the term must be
reasonable (fair), notorious (well known, but not necessarily
universal) and certain (precise).
4. Business efficacy. To pass this test the term must
be necessary for the contract to work properly.
5. Characteristic terms. These are terms implied into
all contracts of employment, for example the implied
term of trust and confidence.
Indirect Discrimination
Discrimination can be direct or indirect. Indirect discrimination
is where there is a requirement, condition, provision,
criterion or practice which has an adverse impact on
one group disproportionately. However, such discrimination
is not unlawful if it can be justified by the employer.
Indirect discrimination applies to sex, sexual orientation,
race, religion and age discrimination. For disability
discrimination the definitions are a little different.
In addition to direct disability discrimination there
is disability-related discrimination and a duty to make
reasonable adjustments.
Itemised Pay Statement
An employee has a right to be given by his employer,
at or before the time at which any payment of wages or
salary is made to him, a written itemised pay statement.
The statement should include the gross pay, details of
deductions from gross pay (eg tax and national insurance),
the net pay and, if the net pay is paid in different
ways, the amount and method of payment of each part.
If an employer fails to provide an itemised pay statement
or deductions are made which are not notified an employee
can apply to an Employment Tribunal for a declaration
to that effect. The Tribunal also has discretion to award
compensation to the employee of a sum up to the value
of the unnotified deductions for the thirteen weeks up
to the date of the application to the Tribunal.
Judgment
A Judgment is a decision by a court or tribunal.
All Judgments reached by the Employment Appeal Tribunal
are published on their website here. http://www.employmentappeals.gov.uk/Judgments/judgments.htm
Judgments reached by Employment Tribunals are sent to
the parties, but are not published, although copies
of Judgments can be obtained for a fee if you know
the names of the parties to the case or the case number.
Jurisdiction
Jurisdiction means the right and power to apply the law.
The employment tribunal has jurisdiction to hear a extensive
list of employment related claims, for example, claims
of unfair dismissal or claims of sex discrimination.
The employment tribunal does not have jurisdiction to
hear some matters such as personal injury claims or contractual
claims exceeding £25,000.
Knowledge (of disability)
In cases of direct discrimination, it is not necessary
for the employer to know of an employee’s disability
in order for a finding of disability discrimination to
be made.
By contrast, in cases of indirect discrimination, it
is necessary for the employer to know of an employee’s
disability in order for a finding of disability discrimination
to be made.
It is not necessary for an employer to have knowledge
of a disability in order to show compliance with the
duty to make reasonable adjustments to facilitate the
accommodation of the employee’s disability. It
is possible that an adjustment may not be a reasonable
one that the employer would have been required to make
even if he had known of the disability.
Less favourable treatment
Less favourable treatment is a term common to the discrimination
legislation.
Use of the word less suggests a comparison. In order
to establish less favourable treatment, a Claimant needs
to show that he or she has been less favourably treated
in comparison to an actual or hypothetical comparator
in broadly comparable circumstances.
Once a Claimant has established a prima facie case of
less favourable treatment, it is for the employer to
prove that the treatment was not by reason of one of
the prohibited grounds ie sex, race, sexual orientation,
disability etc.
Limitation period
The Limitation period is the time window in which Claimants
can bring a Claim before the Employment Tribunal. In
employment matters the limitation periods are far shorter
than the County Court and other types of civil claims.
The limitation periods vary depending on the type of
Claim you intend to present but are often only three
months. You should seek expert advice as to the limitation
period for your Claim, as it is only possible to extend
the limitation period in certain circumstances.
Maternity Rights
A pregnant employee has a number of rights:
1. to have time off for ante-natal care;
2. not to be discriminated against on the grounds of
sex due to pregnancy or childbirth;
3. not to be subject to a detriment on the grounds of
pregnancy or childbirth;
4. to maternity leave when the baby arrives;
5. to statutory maternity pay or allowance; and
6. to return to work after maternity leave.
The rights can often depend on whether an employee is
on Ordinary or Additional Maternity Leave.
Mediation
This is the method whereby a third party assists parties
who are in dispute to reach agreements without the need
for the involvement of the Tribunal.
The mediator will act as an intermediary between the
parties focusing on the real issues and encouraging the
parties to reach an amicable settlement between themselves.
The mediator may suggest settlements to the parties,
but they have no authority to make any decisions or decide
outcomes.
Parties are actively encouraged to settle matters between
themselves without the need for the tribunal to intervene,
and mediation is a less expensive option than tribunal
that can nevertheless be effective.
Minimum Wage
Also known as the National Minimum Wage, the NMW is the
minimum amount of pay employers are lawfully permitted
to pay their workers. The minimum wage has different
rates for different ages (no this does not contravene
the Employment Equality (Age) Regulations 2006). Rates
are split in to three bands - 16-17 year olds, 18-21
year olds and 22+.
The NMW applies to workers, not just employees. This
means that some people who are self employed, at least
for tax purposes, such as building contractors working
under CIS arrangements, may benefit from the right to
be paid the NMW.
The NMW is reviewed every year and changes in October. For current rates and allowances: http://www.berr.gov.uk/whatwedo/employment/pay/national-minimum-wage/index.html
A limited reduction in the rate of the NMW applies to
employers who provide employees with accommodation. However,
the reduction is generally less than the cost of providing
the accommodation. This is known as accommodation allowance
and the rates are available from the Berr website. www.berr.gov.uk
Misconduct
Misconduct generally means behaviour which is unacceptable
in the workplace. It will vary from employer to employer
but examples can include poor time keeping or using bad
language at work.
Mitigation
In most types of legal proceedings, Claimants have a
legal duty to mitigate their loss.
This means they must
take reasonable steps to make their loss as small as
possible - as they would if there was no prospect of
recovering money from their employer or anyone else.
For example, an employee who is Unfairly Dismissed can
mitigate their loss by seeking to obtain another job.
Alternatively, they may be able to mitigate their loss
by setting up their own business.
An Employment Tribunal can reduce any award it may otherwise
have made if it considers an employee has failed to mitigate
his or her loss.
National Minimum Wage
Also known as the Minimum Wage, the NMW is the minimum
amount of pay employers are lawfully permitted to pay
their workers. The minimum wage has different rates for
different ages (no this does not contravene the Employment
Equality (Age) Regulations 2006). Rates are split in
to three bands - 16-17 year olds, 18-21 year olds and
22+.
The NMW applies to workers, not just employees. This
means that some people who are self employed, at least
for tax purposes, such as building contractors working
under CIS arrangements, may benefit from the right to
be paid the NMW.
The NMW is reviewed every year and changes in October.
For current rates and allowances: http://www.berr.gov.uk/whatwedo/employment/pay/national-minimum-wage/index.html
A limited reduction in the rate of the NMW applies to
employers who provide employees with accommodation. However,
the reduction is generally less than the cost of providing
the accommodation. This is known as accommodation allowance
and the rates are available from the Berr website. www.berr.gov.uk
Negligence
Negligence is essentially the carelessness of an individual
which is sufficient to amount to a breach of duty.
The legal test is based on the actions of the “reasonable
person” who represents the average responsible
individual within our society.
Therefore the actions of the individual accused of acting
in a negligent manner will be compared to those of the
reasonable person to ascertain whether they are deemed
to have acted in a negligent manner.
Notice
When the contract of employment is brought to an end
by the employer, the employee is entitled to receive
notice of termination of employment. The only exception
is in the case of dismissal for Gross Misconduct where
dismissal is without notice.
The length of notice is either contractual or statutory
notice. The notice can be either:
1. Worked
2. Served on Garden Leave
3. Paid under a PILON.
When it is the employee who wishes to terminate the contract
of employment, they need to serve notice on the employer,
which is as determined by either; the contract of employment,
custom and practice or what is reasonable.
Order
An Order is an instruction given by the Employment Tribunal
in connection with a case before it. A Chairman can
at any time either on an application or on his own
initiative make an order in connection with case management.
The person subject to the Order can make an application
for the Order to be varied or revoked. An Order is recorded
in writing and sent to the parties. There are serious
consequences for failing to comply with an Order of the
Employment Tribunal.
Overriding Objective
An Employment Tribunal will always try to deal with cases
justly (the ‘overriding objective’) by:
1. ensuring parties are on an equal footing
2. ensuring that the case is dealt with expeditiously
and fairly
3. dealing with the case in ways which are proportionate
to the complexity of the issues
4. saving expense
PILON
PILON stands for Pay In Lieu of Notice. Instead of placing
the employee on Garden Leave or making them work their
notice, the employer can end the contract of employment
earlier by making a payment to the employee that is equivalent
to the amount they would have received had they worked
their notice.
This can be paid free of tax and national insurance contributions
(i.e. Gross) where the employer has not reserved the
right to make the payment in the contract of employment
or where it is not paid by custom and practice. This
is because by doing so the employer is breaching the
employment contract and it is damages for breach of contract.
If the right to make the payment is reserved in the contract
of employment or where it is paid by custom and practice,
then the payment is subject to deductions and paid net.
Pre-hearing review
A pre-hearing review is a hearing which deals with a
preliminary issue in advance of a main hearing which
deals with the substantive issues. Example: In a case
of unfair dismissal a pre-hearing review could be used
to deal with the issue of whether the Claimant was in
fact an employee of the Respondent.
Protective Award
Where 20 or more employees at any one establishment may
be made redundant, the employer must consult with the ‘appropriate
representatives’. Should an employer fail to consult
in accordance with the legal requirements it could be
liable to pay what’s known as a protective award
of up to 90 days’ pay for each employee.
Similarly an employer may be liable to pay a protective
award if it fails to consult employees about measures
which may be taken in respect of a TUPE transfer. In
this case the maximum award is 13 weeks’ pay.
Qualifying period of employment
In order to claim Unfair Dismissal an employee normally
has to have qualifying period of employment. This qualifying
period of employment is a period of not less than one
year ending with the effective date of termination.
There are some exceptions to this requirement for a qualifying period like
dismissal on the grounds of pregnancy for example.
Questionnaires
Questionnaires are used in the Employment Tribunal process in cases of equal
pay or discrimination. In such discrimination cases, information can be requested
from an employer or other respondent by use of a questionnaire before any claim
is presented to a Tribunal. The forms are prescribed in schedules to the relevant
legislation.
The questionnaire enables a prospective claimant to find out information which
may assist the claim for example the relative numbers of employees from a specific
racial background that are employed by the respondent. There are time limits
for presentation of the questionnaires and the respondent is not obliged to
reply. However, a failure to reply within a reasonable time as set out in the
regulations the Tribunal can draw an adverse inference from the failure.
Re-engagement
Should a Claimant be successful is his unfair dismissal claim the Tribunal
can make an order for re-engagement. This means that the employer must re-employ
the Claimant in employment comparable to that form from which he was dismissed
or in other suitable employment.
Redundancy Payment
When an employee is made redundant they are entitled to a redundancy payment
provided the employee has more than two years service. This can arise in one
of two ways:
1. An enhanced redundancy payment under a contract of employment.
2. A statutory redundancy payment
In the latter case the redundancy payment is calculated by reference to the
employee’s age and length of service to give a multiplier. This is then
used together with a week’s pay to calculate the statutory redundancy
payment.
Restrictive Covenant
A clause that is in a contract of employment restricting what an employee can
do after the termination of employment.
In order to be enforceable they need to be reasonable in length and scope and
specific.
Typical restrictive covenants are non solicitation clauses preventing the employee
from soliciting clients, customers, colleagues and suppliers.
Non competition clauses preventing the employee from joining named competitors
or setting up in competition.
Statute
A statute is the posh word for an Act (of parliament). Statutes are collectively
known as primary legislation.
For a statute to become law, it has to be approved by the House of Commons,
then the House of Lords and then has to be rubber stamped by the monarch (the
queen at the moment).
A statute is different to a statutory instrument. Statutory instruments are
also known as Regulations and are made under delegated authority from a Statute.
They are collectively known as secondary legislation. They can be made more
rapidly as they don’t have to go through the formal approval process
in the same way as a statute.
Recent statutes and statutory instruments (SIs for short) can be found at www.opsi.gov.uk.
All courts have to interpret and enforce the wording of statutes and statutory
instruments.
Statutory Notice
Your notice period can be determined in one of two ways:
1. In your contract of employment
2. By statute.
The latter is known as statutory notice and employees are entitled to a minimum
period of notice depending on length of service.
Often the contract of employment gives a longer period of notice. In the rare
scenario where this is less than the statutory minimum period, it is automatically
increased in line with the statutory minimum.
Time limits
All claims to the Employment Tribunal must be presented within a certain time
limit. This varies depending on the type of claim you wish to make. There is
scope in some limited circumstances to obtain an extension to the ordinary
time limit for presenting a claim. The rules are complex.
Tribunal claims presented after the time limit has expired cannot normally
be considered unless the Tribunal can be persuaded to extend time under its
limited discretionary powers. The Tribunal will not have jurisdiction to hear
claims unless they are presented within the time limit or an extension has
been granted.
Tomlin Order
Tomlin Orders were originally used in civil courts; however, the same principle
can now also apply in a Tribunal.
Essentially this order is an agreement between the disputing parties specifying
the terms of settlement that the parties have agreed.
This order is unusual as it enables Court or Tribunal proceedings to be stayed
for a fixed period of time (usually fixed by the Court/Tribunal), and enables
the parties to bring the matter back to Court or Tribunal if either party defaults
on the agreed terms within the specified period of time.
The benefit of this order is that an amicable settlement can be reached without
the need for the matter to be withdrawn from the Court or Tribunal, and in
the event that a party defaults, the other party has the protection of returning
to Court or Tribunal.
Trade Union
Trade union is defined by section 1 of the Trade Union and Labour Relations
(Consolidation) Act 1992 and means an organisation (temporary or permanent)
which consists wholly or mainly of workers and whose principal purposes include
regulating relations between workers and employers or employers associations.
Trust and Confidence
Trust and Confidence is one of the key implied terms
It basically means that neither party should act in a way that undermines the
relationship. Circumstances found to have constituted a breach of the implied
term of trust and confidence includes the following:
•
Failing to show respect by publicly demeaning an employee
•
Failing to deal with a grievance promptly
•
Acting in an arbitrary or capricious manner
TUPE
TUPE (or Transfer of Undertakings Protection of Employment Regulations)
Offers protection to employees whose employment is subject to a relevant transfer.
A relevant transfer is defined within the regulations but in essence covers
most situations where an employee’s employment is transferred to another
employer.
An employee’s terms and conditions and continuity are preserved when
a relevant transfer happens, although pension provision is only partially protected.
Unfair Dismissal
In order to claim unfair dismissal, a claimant has to meet the following criteria:
1. Be an employee.
2. Have one year’s service. There are some exceptions to this such as
those relating to dismissal for pregnancy
3. Have been dismissed.
A dismissal will be fair provided the employer has a potentially fair reason
for dismissal and has followed the statutory dismissal procedure and has acted
reasonably in treating the reason for dismissal as sufficient reason.
Unless Order
An order which if it not complied with by the Claimant or the Respondent will
lead to the Claim or Response being struck out on the date of non-compliance
without further consideration by the tribunal
Variation
A variation of contract can be either agreed or unilateral. An agreed variation
is usually not controversial, for example an increase in pay.
An imposed variation can amount to a dismissal if either the employer resigns
and claims constructive dismissal or the imposed contract amounts to a different
contract.
Vicarious Liability
Legal principle whereby an employer can be held liable for wrongful acts by
his employees that have been committed in the course of their employment. Examples
may include, negligent driving which causes injury, injuries caused by one
employee to another, and theft by an employee from a client.
This principle does not usually apply to contractors as long as the employer
has chosen the contractor carefully. However, there are some exceptions to
this rule.
Week’s Pay
A week’s pay is the unit of measurement for a basic award or a statutory
redundancy payment. A week’s pay is an employee’s gross weekly
wage or the maximum figure, currently £390.00, whichever is the lower.
Witness Order
An Employment Tribunal can issue a witness order to compel an unwilling witness
to attend a hearing.
Witness statement
A witness statement is the document which contains the witness’s evidence
and will be the document the witness reads out at the tribunal. He/she will
then be asked questions in relation to their evidence.
Work Permits
The following require a work permit to work in the UK:
•
Non EU Nationals
•
EU Nationals from Bulgaria or Romania who do not have an Accession Worker’s
Card
Work permits are issued to employers for a specific individual and a specific
job.
Rules on gaining a work permit are in a period of change. The UK is moving
to a points based system.
Written statement of particulars of employment
When an employee begins employment with an employer, the employer should give
the employee a written statement of particulars of employment. The written
statement must be given within two months of the employment beginning.
The Employment Rights Act 1996 s1 sets out specific particulars which must
be included in the written statement.
Wrongful Dismissal
Wrongful dismissal occurs when an employee is, without cause, dismissed without
full notice or without money in lieu of notice. The notice period will be either
the statutory minimum (calculated in accordance with the employee’s length
of service) or that set out in the employee’s contract of employment.
X
If, in an employment law case name, you see the letters X or Y used, this usually
indicates that a restricted reporting order has been made.
A restricted reporting order forbids the publication of the name(s) of some
or all of the parties. Typically used in cases involving alleged sexual harassment
where the individual being accused of harassment cannot be named for legal
reasons.
Xenophobia
An irrational hatred of foreigners. Such characteristics if displayed in the
workplace in behaviour, words or actions is likely to be an unlawful act of
race discrimination under the Race Relations Act.
Young Person
The employment of young persons, defined as between 16 to 18, is governed by
a number of laws relating to national minimum wage, health and safety and hours
of work.
The national minimum wage is lower for a young person than for a person over
21.
There are health and safety restrictions on the type of work young people can
do.
Hours of work are governed by the working time regulations.
Zealous Witness
A witness who favours one party in a case.
We hope we have covered everything in this glossary of employment terms,
but if there is anything you would like any further clarification
with, please Contact Us and we will endeavour to answer
your query as soon as possible.
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