Question 1

When is it a good time to invest in HR management?

Accepted Answer

It is advisable for businesses to invest in HR management as early as employing their first member of staff, as there are employment contracts and company policies to consider.   It’s important that those contracts and policies are updated in accordance with the relevant laws and to ensure that any issues that arise are dealt with in accordance with the correct procedures.

Question 2

Does HR management improve business efficiency and processes?

Accepted Answer

Human Resource is an important part of any business. Staff are just that, a resource and probably the biggest resource to help a business run efficiently and successfully.   Tollers HR, provides a business with expert employment law solicitors to assist with indemnified HR support, giving you peace of mind.

Question 3

What is included in the Tollers HR package?

Accepted Answer

Tollers HR package provides access to a team of specialised employment solicitors for a 12-month period and a Tribunal Indemnity Insurance Policy.

Question 4

How will I be charged for HR management services?

Accepted Answer

The Tollers HR package would be charged as a fixed annual figure for both the employment/HR advice and includes the Tribunal Indemnity Insurance Policy.

Question 5

What are the benefits of outsourcing HR?

Accepted Answer

There are many benefits a business may experience when it comes to outsourcing HR and utilising the Tollers HR package, including reduced costs, increased efficiency, greater flexibility, improved compliance and access to the right expertise. To find out more contact our employment team today.

Question 6

What does the law say about sickness absence and sick pay?

Accepted Answer

The law provides for statutory sick pay (SSP) if an employee is absent due to sickness. An employer may pay contractual sick pay if they wish.   SSP lasts for 28 weeks and is payable from day four of the absence. Any ongoing sickness after that is unpaid.   Managing sickness absence should be done fairly and consistently and take into account any issues under the Equality Act 2010 where applicable. Any decision to dismiss must be fair under the Employment Rights Act 1996.

Question 7

What issues could I face when managing sickness absence?

Accepted Answer

It is important to understand the reason for sickness absences and to ensure that adjustments are made to the process, where appropriate, to enable an employee to engage with the process.   You may also need to seek advice from the employee’s doctor or from Occupational Health.

Question 8

What is the importance of managing sickness absence properly?

Accepted Answer

Managing sickness absences properly should mean that claims for unfair dismissal and/or discrimination are not brought.   Effectively temporarily covering the workload of someone who is off sick to lessen the impact on other colleagues where possible can help with the running of your business and team morale.

Question 9

Is Absence a misconduct?

Accepted Answer

If the absence is for a genuine reason and has been authorised in advance where possible, then no. If it is an unauthorised absence or is not genuine, then it could be a misconduct offence.

Question 10

How can I manage employee absences, so it does not affect my business?

Accepted Answer

It is important to ensure employees are aware of the company policies in relation to absences. Analyse the absences and focus on the reasons for absence.

Question 11

How much can I recover in an unfair dismissal claim?

Accepted Answer

If a claim for unfair dismissal is successful then it will comprise of two parts: the basic award and the compensatory award.   The basic award is calculated following a set formula relating to age, length of service (currently up to a maximum of 20 years service and 60 years of age) and weekly pay (subject to a cap, which is updated every April) in the same way a statutory redundancy payment.   The compensatory award is at the discretion of the employment tribunal and will be awarded based on the facts of each claim, however, there is a cap on the compensatory award, which would be the lower amount out of the gross annual pay or the statutory cap, in force from time to time.   The cap is updated every April and details can be found on the government website.

Question 12

Can I have a solicitor at a disciplinary hearing?

Accepted Answer

As an employee, your statutory right to be accompanied to a disciplinary meeting is in respect of a colleague or a Union Rep. It is a right to be accompanied and not represented.   However, where a career is at stake, such as with a doctor or a solicitor who faces being struck off, then the right to be represented by a solicitor may be appropriate.

Question 13

Can you be dismissed at a disciplinary hearing?

Accepted Answer

Yes. However, it will depend on the circumstances of the case.

Question 14

Is it a legal requirement to have a disciplinary procedure?

Accepted Answer

It is best practice to conduct a disciplinary process, especially where an employee has two or more years continuous service.

Question 15

What if you are unable to attend a disciplinary meeting due to sickness and wish to postpone the disciplinary meeting?

Accepted Answer

Employers are required to be fair and reasonable throughout a disciplinary process.   Where an employee is unwell and cannot attend a disciplinary meeting, the employer can request advice from occupational health or a medical professional to advise on whether the employee is able to attend the meeting and if the employer should make any adjustments to help with their attendance or cooperation if required.   In any case, it will depend on the circumstances of the case.

Question 16

What if there are delays by your employer in dealing with the disciplinary process?

Accepted Answer

It will depend on the circumstances of the case however usually the process should be conducted in an effective way, even if this means using other forms of communication i.e. telephone or video call, or written correspondence.

Question 17

Can you insist on recording the disciplinary hearing?

Accepted Answer

This will depend on the terms of the company disciplinary process.   As an employer, it is important to take advice in respect of any disciplinary process or dismissal you are contemplating, in order to minimise the risk of a tribunal claim against you or the company, such as unfair dismissal and/ or discrimination etc.

Question 18

What if you don’t agree to the written notes of the meeting supplied by your employer?

Accepted Answer

You can state that you don’t agree with them and why. You could also take your own notes and provide those to your employer.

Question 19

Can I appeal my employer’s decision about my disciplinary dismissal?

Accepted Answer

Depending on the circumstances of the case, a disciplinary decision can be appealed.

Question 20

How does the disciplinary process work?

Accepted Answer

Depending on the seriousness of the allegation(s) or the circumstances of the case, the process may usually begin with a verbal warning regarding the issues (if they are not serious and can be easily remedied).   A formal process usually involves issuing two written warnings, the second warning, being a final warning. In more serious cases, an employer may be able to issue a final written warning (without a previous warning being in place) or even dismiss the employee.

Question 21

Can we dismiss an employee if they have been convicted of a crime?

Accepted Answer

This will depend on the employment contract and the nature and/or seriousness of the crime.

Question 22

If an employer suspends an employee following an allegation of misconduct, do we still have to pay their wages?

Accepted Answer

An employee should receive full pay during any period of suspension, unless otherwise stated in the employment contract, for example during a “lay-off” situation.   Suspension should only be for a reasonable period of time.   As an employer, it is important to take advice in respect of any disciplinary process or dismissal you are contemplating, in order to minimise the risk of a tribunal claim against you or the company, such as unfair dismissal and/ or discrimination etc.

Question 23

How many stages are in a disciplinary procedure?

Accepted Answer

Depending on the circumstances, there are usually four distinct parts; investigation; meeting; outcome; and appeal.

Question 24

The dos and don’ts of creating an employee handbook

Accepted Answer

There are many “dos and dont’s” when creating an employee/staff handbook:  “Dos” include:  The main policies, which are: Disciplinary procedures and rules; Grievance procedures; Information about pensions; Health and safety (if 5 or more employees); and Whistleblowing (in some cases). Other policies that are strongly recommended are: bribery; anti-facilitation of tax evasion; equal opportunities; data protection; and whistleblowing; and Keep it simple by making it easy to read and understand.  “Dont’s” include:  Ensure the employee/staff handbook is not a binding contract; Do not include restrictive covenants in the handbook; and Do not include policies that simply do not apply.

Question 25

Are employers required to provide an employee handbook?

Accepted Answer

Employers are not legally required to provide an employee/staff handbook, but it is recommended as employers should inform employees of any company policies.   The higher the number of employees, the more convenient it is to refer to a handbook.

Question 26

Why do I need an employee handbook?

Accepted Answer

An employee/staff handbook can be an effective and convenient way of informing all employees of the company policies.

Question 27

What does a solicitor do with a settlement agreement?

Accepted Answer

A specialist solicitor will need to be instructed to advise on any settlement agreements. The solicitor will review the agreement and advise the employee as to its terms and effect. When the advice is given, the solicitor will need to sign off on the agreement before it can be entered into by the employee.

Question 28

Who can write a settlement agreement?

Accepted Answer

It is usually an employer that drafts the settlement agreement before it is given to the employee. When the employee seeks legal advice on the agreement, there may be negotiations on the terms of the agreement before it is finalised.

Question 29

Can I write my own settlement agreement?

Accepted Answer

It is important for employers to seek legal advice when drafting settlement agreements, this is to ensure that the agreement is valid agreement and adequately covers the intended remit.

Question 30

Why have I been asked to sign a settlement agreement?

Accepted Answer

If you have been offered a settlement agreement, your employer is offering you the option to terminate your employment and essentially leave on a 'clean break'. It is necessary that employees seek legal advice when they have been offered a settlement agreement to ensure that the employee understands and is comfortable with it. When the agreement is finalised, an employee will be signing away most legal rights to bring any claims against their employer, so seeking legal advice is a must. A settlement agreement won't be binding unless it has been signed by an appropriate legal adviser.

Question 31

Do I have to agree to a settlement agreement?

Accepted Answer

No, it is your choice. A settlement agreement should be offered on a "without prejudice" basis, so if it is not accepted, both the employer and employee should not be prejudiced and should be able to continue as if the agreement was never offered.

Question 32

Is a settlement agreement the same as redundancy?

Accepted Answer

No, a settlement agreement can be offered at any stage during employment. Redundancy is potentially fair reason for termination of employment, which can be effected without a settlement agreement (unless it is for an enhanced voluntary redundancy package), whereas a settlement agreement is a legally binding agreement to terminate employment that is entered into by both parties. Employment may continue after a settlement agreement, whereas it cannot continue after a confirmed redundancy.

Question 33

What happens if you breach a settlement agreement?

Accepted Answer

It is likely that the settlement agreement contains specific terms regarding the consequences of a breach. It is a contract, so a breach of contract claim can be brought. Usually this is to repay the sums under it and cover any associated legal costs etc. The amount is often repayable as a debt, so interest would accrue. It is important to review the agreement to identify the consequences prior to signing it and prior to any action that could constitute a breach.

Question 34

Can I tell anyone about a settlement agreement?

Accepted Answer

The terms of a settlement agreement are confidential and cannot be discussed with anyone except the legal advisor that you are seeking advice from and any other individuals (if any) explicitly listed within the agreement.

Question 35

Will my employer give me a reference after I've signed a settlement agreement?

Accepted Answer

Whether a reference is given or not, is a term that will usually be contained in the agreement itself. In most cases, the format and content of the reference will be contained within the agreement. It is important not to rely on anything that is not expressly covered in the agreement, as once accepted, these will be the final terms you have come to with your employer.

Question 36

Is a settlement agreement the same as a Non-Disclosure Agreement?

Accepted Answer

A non-disclosure term is usually included within a settlement agreement. The term prevents the parties from discussing the agreement and the circumstances surrounding the termination of employment with anyone, with the exception of seeking legal advice on the agreement.  If not included within a settlement agreement, a non-disclosure agreement would need to be enacted as a separate contract and would be used in different situations.

Question 37

When is it best to offer settlement agreements?

Accepted Answer

There is no rule on when a settlement agreement should be offered. It is usually a tool available to employers if they want to terminate an employee's employment without delay and to achieve a clean break.

Question 38

What does "without prejudice & subject to contract mean"?

Accepted Answer

"Without prejudice and subject to contract" usually means that a party does not wish to enter into a binding relationship until the terms of the agreement are agreed, at which point they become "subject to contract". Prior to that the employer and employee should not be prejudiced by the discussions, which fall under the without prejudice category.

Question 39

What are the advantages/disadvantages of a settlement agreement?

Accepted Answer

The advantages of a settlement agreement are that they provide a clean break for both the employer and employee. In difficult situations, it can often be a time and cost saving measure to avoid legal costs pursuing an employment tribunal claim. While it can be cost saving in some cases, in others it may be more expensive, especially when paying out lump sum figures. If the agreement is not agreed then this may cause a breakdown in working relationships. Entering into a settlement agreement can protect the employee from going through a process that could detriment future employment prospects, such as summary dismissal or other reasons for termination.

Question 40

What is included in a Settlement Agreement?

Accepted Answer

A settlement agreement contains terms that effect the termination of employment of an employee, including for e.g. confidentiality, returning property and an employment law claim waiver. An employer will generally offer a lump sum payment, which typically comprises of the notice payment/accrued holiday and payments due under the employment contract. In addition, the employer will normally pay a compensatory amount for the loss of employment and consideration for the employee's waiver of claims. An employer will usually pay a contribution towards the employee's legal fees in taking advice on the terms of the agreement.

Question 41

What types of employment claims can be settled by a settlement agreement?

Accepted Answer

Settlement agreements can generally settle any claims, with certain limited exceptions, such as personal injury claims that were not known to the employee at the time of entering into the agreement, accrued pension rights, or rights to enforce the agreement. In some situations this may also include the right to be informed and consulted under TUPE.

Question 42

Can I ask my employer for a settlement agreement?

Accepted Answer

Yes, employees can request a settlement agreement, however employers are not obliged to agree to any such request.

Question 43

What are the risks of signing a Settlement Agreement?

Accepted Answer

Signing a settlement agreement means that an employee will be giving up their legal rights to pursue a claim against their current or former employer for issues arising out of their employment. Settlement agreements can have consequences if they are breached. It is therefore a fundamental element of any settlement agreement that a legal professional advises and signs off on it before it is finalised.

Question 44

What are the Settlement Agreement Solicitor fees?

Accepted Answer

The solicitor's fees for advising an employee on a settlement agreement will range depending on the professional/firm they choose to instruct. Employers who wish to successfully conclude a settlement agreement should be mindful that if they are not willing to provide a reasonable contribution, then this may put the employee off considering the settlement agreement much further.

Question 45

Does an employment contact have to be in writing?

Accepted Answer

Yes. Any employee should be given a written contract no later than on the day they start a job with a new employer.

Question 46

Can your employer change the terms of your employment contract?

Accepted Answer

An employer cannot unilaterally change the terms of an employment contract unless there are provisions within the contract allowing them to do so. If they do change the terms without an employee’s consent or reasonable contractual right, they may be in breach of the contract. An employee could reject the change and make it clear that they are working under protest and/or resign and may be able to make a claim for constructive dismissal.

Question 47

Are you entitled to be paid for overtime?

Accepted Answer

This will depend on the terms of your employment contract.

Question 48

What are examples of breaches of contract by employer?

Accepted Answer

This is not an exhaustive list, but a few examples could be: reducing staff pay with consent or right, unilateral changes to the terms of employment contract without consent or right, not paying monies owed under a contract, breaching their duty of care to staff health and safety, or breaching trust and confidence.

Question 49

What are my remedies for a breach of contract claim?

Accepted Answer

The most common remedy for breach of contract under employment law is for financial loss, such as a loss of earnings and/or a basic award if an employee is found to be constructively, wrongly or unfairly dismissed. It may also include compensatory damages for injury to feelings if the breach of contract is found to be discriminatory.

Question 50

Can I still be paid if my employer sends me home because there is not enough work?

Accepted Answer

If an employer cannot provide enough work to an employee and sends them home, they can only withhold payment if it is permitted in the employment contract. Usually this takes the form of a "lay off" or "short term working" clause. If an employer withholds payment without a contractual right to do so, or prolongs the time off work, this could give rise to a constructive dismissal and/or a redundancy pay claim.

Question 51

Can my employer force me to work from home indefinitely?

Accepted Answer

This will depend on the content of the employment contract.

Question 52

What is the difference between an employee and self-employed status?

Accepted Answer

An employee is protected by the Employment Rights Act 1996 and is entitled to statutory employment rights, such as sick pay, holiday pay and entitlement, parental leave, notice pay, working time limits, minimum wage requirements etc.  Someone who is self-employed is not protected by employment law legislation. To determine the employment status of an individual, it will be necessary to look at the way in which they are expected to perform their services.

Question 53

What is the national minimum wage in UK?

Accepted Answer

The National Minimum Wage is usually updated in April every year, and differs based on an individual’s age. The different tiers can be found on the official government website at www.gov.uk/national-minimum-wage-rates

Question 54

Am I entitled to be paid for my travel time to work?

Accepted Answer

Unless there is an agreement regarding travel time, it is generally not common for travel time to be included in working time/for employers to pay for time to travel to their usual place of work. Paid travel time is most common where employees are required to travel from a usual place of work in order to fulfill their work duties.

Question 55

What are my rights if my job offer has been withdrawn?

Accepted Answer

It will depend on whether it is an unconditional or conditional job offer and whether the offer has been accepted. If you have accepted an unconditional job offer, a withdrawal by the employer could be seen as a breach of contract, and you may be entitled to sue for breach of contract, but any damages would be for financial loss. If the offer is conditional and you have not met some or any of the conditions, then the employer can withdraw the offer without penalty.

Question 56

My new contract includes a 'non-compete' clause. Should I sign it?

Accepted Answer

It is important to seek legal advice from a solicitor when signing a contract with a non-compete clause or any other restrictive covenants. If the non-compete is an enforceable clause, you will need to determine the extent of the restrictions on you prior to signing a contract.

Question 57

Is it illegal for an employment contract not to include maternity/paternity leave?

Accepted Answer

It is a legal requirement for employment contracts to include a term  stating that employees may be entitled to maternity or other types of paid leave.

Question 58

What types of break between contracts would not constitute a break in continuous employment?

Accepted Answer

Situations which do not constitute a break are:-  1) 	If an employee resigns or is dismissed due to sickness and then re-employed within 26 weeks;  2) 	Where an employee is off work due to a temporary cessation of work;  3) 	An arrangement or custom whereby an employee is off work for a period of time agreed in advance or at the start of the gap;  4) 	Statutory continuity involving a transfer of business or trade;  5) 	Re-employment after redundancy, as long as the re-employment begins before the end of employment under the previous contract;  6) 	If a dismissed employee is re-engaged following their dismissal either within 4 weeks of the dismissal or as a result of an ACAS conciliation agreement, settlement agreement or at the direction by an Employment Tribunal; or  7) 	Full or part of the work (not in redundancy) is completed outside of Great Britain will be treated as the same as working within Great Britain.

Question 59

Can I sue my employer for discrimination in the UK?

Accepted Answer

If you believe you have grounds for a discrimination claim, provided you are within the relevant time frames then yes, you can make a claim at the Employment Tribunal on the grounds of discrimination.

Question 60

Is it hard to prove discrimination at work?

Accepted Answer

Proving a discrimination claim can be difficult, as the burden of proof is usually on the employee to prove discrimination in the first instance. It is important to identify a protected characteristic, the less favourable treatment connected to it and the evidence supporting the claim.

Question 61

What are the grounds for discrimination at work?

Accepted Answer

There are 9 protected characteristics on which you could be discriminated, these are: age, gender assignment, being married or in a civil partnership, being pregnant or on maternity leave, disability, race, religion or belief, sex or sexual orientation.

Question 62

How much compensation do you get for discrimination UK?

Accepted Answer

There are three bands that the Employment Tribunal can make an award under and the amount of compensation depends on which bracket the successful claim falls under. These are called Vento guidelines.

Question 63

Is it worth it to sue for discrimination?

Accepted Answer

In an employment tribunal, apart from in certain situations, each party usually pays their own fees win or lose. An employee can represent themselves if they don't want to incur legal fees, or have no other method of funding. Tribunals can be stressful and time consuming. Ultimately it is a decision for the individual as to whether or not they feel it is worth bringing a claim.

Question 64

How much should I ask for in a discrimination case?

Accepted Answer

It will depend on your case and which band you feel your claim falls under. There are three bands of compensation and the amount of compensation under each varies. These are called Vento guidelines.

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