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Employment Tips

Helping Employees

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Can Help

Here at Owl Employment, we are pleased to offer a series of employment tips. Snippets of Employment Law knowledge, which every Employee should take note of.

1

“The fundamental difference between age discrimination and other forms of discrimination is that less favourable treatment on the grounds of age can be justified.”

2

“Nothing helps resolve litigation or create an agenda for settlement other than getting the Claimant to focus on the likely recoverable elements of the claim, and this enables the adviser to put any points of challenge that are required to make the settlement more effective”

3

“The next three posts related to the test for employee status, are you an employee or not, based on the following elements; “do you provide a personal service, enough mutual obligation between the two parties; to do work personally and the employer to provide the work”

4

“This is the second post relating to employee status; “the second element of the tests include sufficient control, direct or indirect, sometimes a ‘framework of control’ that the employer must have over the employee.”

5

“The final part of the test for employee status; “the mixed test, which involves a consideration of all the factors which must be consistent with employment and not inconsistent with it.”

6

“When companies fail, creditors or liquidators look to see if they can obtain recourse to the directors’ personal assets and funds. Directors owe fiduciary duties to the Company rather than to third parties”

7

“What is seen as the directors’ core duty is to show undivided loyalty and selflessly to act in good faith, in the best interests of the company. There is an obligation on the director not to make a profit and to avoid all conflicts of interest. The duty is strict, even where the company could not have made the profit, a profit made by a director must be accounted for by the company

8

“The legal test for direct discrimination, is when someone treats someone treats someone less favourably than they treat others, or would treat others, because of a protected characteristic. These protected characteristics includes Age; Disability; Gender Re-Assignment; Marriage and Civil Partnerships; Pregnancy and Maternity; Race; religion or belief; Sex; and Sexual Orientation”

9

“The key element to direct discrimination is that with the exception of age discrimination, there is no defence to direct discrimination. It cannot be justified. The law focuses on the equality of treatment not on the equality of the treatment. You can be treated well and still win a claim, equally you can be treated very badly and still lose”

10

“The test for indirect discrimination requires a provision, criterion, or practice, and it has to be applied by the employer more broadly that just to people with a protected characteristic. The PCP must put those individuals with the Claimants protected characteristics at a particular disadvantage, and the individual must have the same disadvantage.”

11

“With the impact of COVID-19 the effects of section 100 Employment Rights Act 1996 (1) (d) and (e) will now come to the fore. These sections give employees the ability to unilaterally and without consultation with their employer, to ability to refuse to turn up to their workplace or to leave the workplace if certain conditions are fulfilled”

12

“The second post relating to Health and safety relates to the employees belief, both sections under the ERA 1996 begin with “in circumstances of danger” and goes on to say “which the employee reasonably believed to be serious and imminent” but the agreement of the employer is not required it’s the employees reasonable belief that counts, and what information was available to the employee”

13

“Auto enrolment to a pension now applies to every employee. “During the course of employment employees have the right under section 55 of the Pensions Act 2008 not to be subjected to a detriment for enforcing or trying to enforce, their auto enrolment rights. If someone is dismissed and the reason or principle reason is that they were enforcing or seeking to enforce, their auto enrolment rights then the dismissal will be automatically unfair”

14

“Section 129 of the Equality Act 2010 sets out the applicable limitation periods for an equal pay claim. In practice for a standard case the time limit is six months beginning with the day on which the employment ended. Unlike other species of discrimination, there is not provision for a just and equitable extension of time for equal pay claims”

15

“The Transfer of an Undertaking (Protection of Employment) Regulations 2006, create an automatic transfer principle. This means that under Regulations 4, employees transfer to the transferee and the transferee inherits all rights, liabilities and obligations relating to the employee. Employees receive additional protection in that it is automatically unfair to dismiss then for a reason related to the TUPE transfer.”

16

“Section 111 of the Employment Rights Act 1996 covers unfair dismissal time limits, which allows three months from the effective date of termination or such further reasonable period where it was not reasonably practicable to bring the claim in time. This is a two-stage test, firstly was it reasonably practicable to bring the claim in time; and secondly, whether the claim has been presented in such further period of the tribunal considers reasonable.”

17

“Normally the time limits run from the last act of discrimination and a claim must be presented to an employment tribunal within 3 months (minus 1 day), s. 123(1) Equality Act 2010 (EqA 2010). s123 (1) (b) says, ‘such other period as the employment tribunal thinks just and equitable.’ This wording allows for the tribunal to be persuaded to extend the time to claim. To succeed in the claim the claimant should therefore provide evidence of: a) the length of and reasons for the delay; b) the extent to which the evidence is likely to be affected by the delay; c) the extent to which the party sued had cooperated with any requests for information; d) the promptness with which the claimant acted; and e) the steps taken by the claimant to obtain advice once they thought about taking action.”

18

“Harassment related to a protected characteristic, required unwanted conduct that is related to a protected characteristics and has the purpose or effect of violating a persons dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for that individual. Conduct included a wide range of behaviour, including written words, abuse, imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks, and other physical behaviour. So pretty much anything can amount to ‘conduct’”

19

“Sexual harassment requires unwanted conduct that is of a sexual nature and has the purpose or effect. The conduct can, again take a wide variety of forms, comments, touching, advances, etc. When looking at whether it is unwanted, it is important to look at specific allegations of sexual harassment. Be aware, that just because somebody has joined in some banter does not mean they consent to crude sexual comments.”

20

“Vicarious liability can often be an issue, with harassment, an employer will be vicariously liable for harassment if it happens in the course of employment. In the context of socialising, this will apply also to situations which are extensions of the workplace. Other circumstances which might be relevant include the power dynamic, so a senior manager and a junior employee, even if outside work, is more likely to lead to vicarious liability.”

21

“Section 15 EqA 2010 states: “Discrimination arising from disability (1) A person (A) discriminates against a disabled person (B) if (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. A good way of approaching the merits of a section 15 claim is: a. Did the respondent in fact know about the disability? b. Should the respondent have known about the disability? c. What is the “something” which the claimant relies on? d. Did the respondent treat the claimant unfavourably because of that something? And can the respondent justify such treatment?”

22

“When looking at a Redundancy the starting point is the definition under section 139 ERA 1996, which asks whether the need for an employee to carry out work of a particular kind has ceased or diminished. Then there are four key things to look at, Employers must give as much warning of impending redundancies as possible; there needs to be consultation; there needs to be a fair selection criteria, and there needs to be consideration of alternative employment, consider these points before raising a claim.”

23

“Last in first Out, (LIFO) used to be a central decision maker for making people redundant, but LIFO could be indirectly age discriminatory since younger workers tend to have shorter service. They would therefore be disproportionately affected by a Last In First Out policy. This might not always be the case though evidence would be required to show that the age profile of those selected for redundancy is not significantly different from the age profile of those in the wider workforce.”

24

“Dismissals which take place for a discriminatory reason will be actionable irrespective of length of service. Therefore, although the employee may not be able to claim unfair dismissal, if they have less than the qualifying service, they could claim that their dismissal was discriminatory. Compensation for a discriminatory dismissal is calculated in a similar way to an unfair dismissal claim in terms of compensation for loss of earnings except there is no cap on compensation in discrimination cases and an injury to feelings award is also payable where a finding of discrimination is made.

25

“In light of this when considering dismissal employers should consider whether the reason for dismissal is linked in any way to a protected characteristic. The protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. In particular, when dismissal is on the grounds of ill-health or capability to do the job then consideration should be given as to whether there could be an underlying disability.”

26

“Employment terms can be changed, but they require consent and/or consideration. Consent can come via an express agreement or via an implied arrangement. Whilst it is obvious when there is express consent, implied consent can be broken down into various elements, (1) the employee continues to work (2) there is an absence of protest (3) an amount of time has passed and (4) there is an awareness of the change of the terms.”

27

“Dismissal or Resignation. Section 95(1) ERA 1996, sets out the three ways a dismissal can occur, and these are based on the actions of the employer; Whereas resignation is where an employee gives notice to the employer that they no longer wish to be bound by or perform the employment contract. A key part of the resignation, is that the employee must communicate to the employer that they wish to resign.”

28

“The test for fairness in a dismissal is contained in section 98(4) ERA 1996, and takes account of the circumstances, the size of the employer, the administrative resources of the employer, whether the employer acted reasonably in the circumstance, and whether the ultimate dismissal was within the band of reasonable responses open to an employer.”

29

“The level of proof is fluid, which means at one end of the spectrum, you have the situation where there is an admitted conduct and that usually involves little scope for investigation, or maybe one element that requires further consideration, for example if the employee attributes their misconduct to ill-health or disability. At the other end of the spectrum, all the essential facts may be disputed. Here a particularly, rigours approach is needed, especially where the individuals, career could be blighted by a finding of misconduct.”

30

“The final point in this series relates to confidential information, and the law has created three categories, first is information which is especially confidential amounting to trade secrets second is merely confidential information and the third is any other type of information. It is only information in the first two categories, information which amounts to a trade secret or is properly classed as merely confidential, which is protectable or is the proprietary information of the employer.”

31

“The distinction between those types, and between trade secrets and mere confidential information, is important as it defines the relief that an employer can get. Trade secrets will be protected and are protectable, even after termination of employment and even though there is no express covenant in place relating to that information.”