Employment Law - Frequently Asked Questions

What are Employment Rights?

All employees and prospective employees have employment rights. Every employee and prospective employee has the right not to be discriminated against on grounds of sex, race or disability. Thereafter employment rights tend to reflect the length of employment.

Are you an Employee?

Certain rights are restricted to employees only. An employee is a person who works under a contract of employment for his or her employer. The contract need not be in writing. Many factors are taken into consideration when deciding if a worker is an employee, including whether the employer pays PAYE/National Insurance Contributions; the working relationship between the employer and employee (whether the employer controls the work undertaken by the employee); whether the employer provides specific tools for the job and whether the employee receives benefits such as holiday.

What are Rights to Notice?

An employee with more than one month's continuous employment has a right to notice of termination of employment from their employer. The length of this notice will be implied in the contract of employment and is usually dependent upon the length of employment. Employees with one month to two years continuous employment will be entitled to one weeks notice from the employer. Thereafter the employee will be entitled to a week per year of continuous service to a maximum of twelve weeks notice, after twelve years service. This notice period can be extended by the employer under the contract.

It will be implied in the contract that the employee must give the employer one weeks notice to terminate the contract of employment. This can also be extended by contract between the employer and employee.

What is Unfair Dismissal?

Employees with one year's continuous employment have a right not to be unfairly dismissed. Some employees with less than one year's continuous employment can claim unfair dismissal on special grounds.

If an employee has over one year's continuous employment then they have a right not to be unfairly dismissed. The dismissal will be unfair unless the employer has a fair ground for dismissal. The five fair grounds for dismissal are:

1) Conduct
2) Incapability
3) Redundancy
4) Unlawful employmen
5) Some other substantive reason

Relying upon the fair grounds for dismissal the employer has to act fairly. It is possible that an employer can have a fair ground for dismissal but act unreasonably and hence the employee is procedurally unfairly dismissed.

Have I been Dismissed?

It may seem obvious but in order to claim unfair dismissal it is necessary to show that you have been dismissed. Normally this will be straight forward, as the employee will be told to leave by the employer. However, it is possible to claim constructive dismissal if the employer acts so unreasonably as to treat the contract of employment as at an end. Employees considering claiming constructive dismissal should seek independent legal advice as to their position.

If the employee is dismissed with over one year's continuous employment then it will be for the employer to show that dismissal was fair.

What Damages for Unfair Dismissal Can I Claim?

If the employer fails to prove at an employment tribunal that a dismissal was fair, then the employee will be entitled to damages for unfair dismissal. Damages may include elements of the following:

1) Outstanding pay and benefits to date of dismissal including accrued holiday pay
2) Pay in lieu of notice
3) Basic award is calculated in relation to age, years of service and salary to a maximum of £350.00 per week
4) Compensatory award, damages for loss of earnings from date of dismissal to date of obtaining alternative employment at similar pay, or such date as the Tribunal assess is just and equitable for the employee to receive. This is up to a maximum of £66,200.00

How long do I have to make a claim for Unfair Dismissal?

An employee will have three months from the date of dismissal within which to commence proceedings at a tribunal. Thereafter the employees claim will be outside the time limit.

What about Legal Costs?

Legal costs are irrecoverable by the employee at an Employment Tribunal even if his or her claim is successful unless the other party has acted unreasonably. We are happy to discuss any legal costs with you when you make a claim.

Do I qualify for Redundancy?

Redundancy is the closing down of a place of work, or ceasing or diminishing of the particular work undertaken by the employee. Employees with over two year's continuous employment have a right to redundancy payment if made redundant.

An employer must act fairly when dismissing an employee for redundancy. A fair procedure would normally involve warning, fair selection, consultation, consideration of suitable alternative employment, and notice. Employees have the right to time off to attend job interviews during the redundancy notice period.

If an employee has over two years continuous employment and is made redundant, then they are entitled to a redundancy payment calculated in relation to age, years of service and salary to a maximum of £350.00 per week.