No. However withholding 20% of salary would amount to a breach of contract and unlawful deductions of wages unless the employee gives their consent. It is expected that the majority of employees will consent since furlough leave is a much better alternative than unpaid leave, lay off or redundancy.
An employee can request this but the employer does not have to agree. It is the employer’s decision which employees to place on furlough leave. It is unclear whether refusing to place employees on furlough leave and making them redundant instead could amount to unfair dismissal.
Yes, it is possible to approach your employer on a “without prejudice” (off the record) basis to investigate whether they would be willing to negotiate the terms of your exit from the business. This may be an appropriate course of action if you:
- are unhappy at work;
- have received an unsatisfactory outcome to a grievance and feel unable to continue in the work environment;
- face disciplinary action or performance management;
- believe you may have grounds to bring a claim against your employer in the Employment Tribunal.
There is nothing in the current guidance which suggests that the employer will only be able to access the reimbursement if it makes it a condition of furlough leave that the employee does not work elsewhere. Therefore, in theory an employee could work for another employer. It is however clear that the employee cannot do work for the employer seeking the reimbursement during furlough leave.
Some employers will not be able to continue to pay 80% of salaries until the HMRC portal is up and running and reimbursement is received. They therefore have the option of :
- Making the employees redundant although this will have its own associated costs
- Putting the employees on unpaid leave until the scheme is up and running
- Reaching an agreement with the affected employees that they will be furloughed now but that payment of their salaries will be deferred until reimbursement is received from HMRC
The scheme states that employees must be furloughed for a minimum of 3 weeks. What is not clear is how long the employee may return to work after a period of furlough leave before being placed on furlough leave again.
Unfortunately, the interaction between annual leave and furlough leave is not currently clear and there are several potential issues with allowing or requiring workers to take annual leave during furlough. Employers may be concerned with the effect of employees taking annual leave on their ability to obtain reimbursement from HMRC. Furlough leave needs to be taken in blocks of 3 weeks so arguably cannot be interrupted by annual leave. However , under the Working Time Regulations , an employer can require an employee to take annual leave by giving notice of twice the length of leave to be taken . So an employer could in theory require that every third week of furlough leave is to be taken as annual leave !
Yes, provided that the volunteering in question is not for the same employer.
Yes , in addition to compensation for loss of earnings , injury to feelings awards are available .
This will depend on the type of claim that you want to make and whether you are still “in time” to bring a claim.
The majority of employment claims are brought in the Employment Tribunal, although certain claims can also be brought in the County Court. Examples of potential claims that can be brought within the Tribunal system include:
- Unfair Dismissal
- Constructive Dismissal
- Sex Discrimination
- Disability Discrimination
- Sexual Orientation Discrimination
- Gender Assignment Discrimination
- Race Discrimination
- Religion or Belief Discrimination
- Age Discrimination
- Unpaid Wages
- Equal Pay
- Unpaid Redundancy Pay Claims
- Wrongful Dismissal
This is not an exhaustive list and there are also a number of other employment claims that can be brought in the Employment Tribunal, for example, TUPE claims, part-time worker regulations etc.
You can also make employment claims in the County Court however these claims are limited to breach of contract only. If you issue a claim at the County Court you will have to pay a court fee, which is based on the value of your claim. Fees are now payable in the Employment Tribunal and the size of the fee depends upon the type of claim.
Although you do not have to accept a Settlement Agreement offered by your employer, once you have signed the document, it is seen as full and final settlement of any potential claims you may have against your employer.
If all the required formalities are fulfilled, such agreements are legally binding agreement and cannot be revoked.
For these reasons it is a legal requirement that you receive independent legal advice from a qualified solicitor who is adequately insured.
Employees who were made redundant since 28th February 2020 can qualify if they are re-engaged by their former employer. However , there is no obligation on an employer to do this.
Yes, this must be offered and dealt with by someone more senior.
In most Employment Tribunal cases, there are strict three month/less one day time limits within which you can issue proceedings. These time limits usually begin to run from the termination date of your employment (unfair dismissal), date of your resignation (constructive dismissal) or from the incident of discrimination.
If you try and issue proceedings outside of this three month time limit, your claim will only be accepted in exceptional circumstances.
Exceptions to the three month time limit include cases regarding equal pay disputes and redundancy payment disputes when claims must be issued within six months.
Unfortunately, there are no definite timeframes when bringing a claim in the Employment Tribunal. As a guide, the tribunal states that simple cases should be concluded within nine months of issuing proceedings. However, the time frame is often dependant on which part of the country your case is being heard and the type of claim.
You are not obliged to enter into a Settlement Agreement if you do not wish to do so. If you would like to negotiate the terms of the Settlement Agreement it is possible to make a counter offer. If negotiations are unsuccessful, depending upon the circumstances, the employee can decide whether they wish to issue a claim in the Employment Tribunal. The time limit for bringing such a claim is three months less one day from the date of termination/last act of discrimination. If the discussions regarding the Settlement Agreement are “off the record” they cannot usually be referred to in any legal proceedings.
It would seem at first sight that employees who transferred under TUPE to a new employer after that date cannot be placed on furlough leave. However given that TUPE operates to preserve the rights of employees and their contracts on transfer to the new employer it could be argued that these employees should be treated as if they were on the new employe’rs payroll on 28th February. This point requires further clarification from the government and at the moment, it is difficult to say with certainty which is the correct answer.
Yes 2 years.
We are able to discuss the terms of the Employment Settlement Agreement with you over the telephone or arrange a meeting if you prefer. The offer made will depend upon the circumstances leading up to the discussions and the relative strength of any claim you have. If you have not secured another job to go to, as a general rule of thumb, a payment equivalent to six months’ salary would be considered a good settlement. For a more accurate assessment please use our settlement agreement calculator.
Whilst there is no legal obligation for an employer to provide a job reference, a factual reference is often appended to the settlement agreement. The content of the reference is usually confined to the job title and length of service.
Usually a document consisting of several pages outlining issues such as:
- The details of any severance payment you are to receive at the end of your employment.
- Settlement of any claims the employee may have against the employer.
- Assurance by the parties that no future legal action regarding your employment relationship will be pursued.
- The details that will be provided to other employers after your departure.
- The reference you will receive from your employer (we usually agree the wording of any references).
- Whether certain matters are required to be kept confidential.
- Whether there will be any restrictions placed on the employee after leaving the employer.
Unfortunately the time limit is very strict so we would be unable to help you
Put simply, a grievance is a complaint. If you are having a problem at work (for example, you are unhappy with something you have been asked to do as part of your job), you are concerned about an issue that has arisen at work (for example, the terms of your contract of employment have been changed) or you wish to make a complaint about a colleague or a manager (for example, you feel you are being bullied by a colleague or a manager) then you can raise a “grievance”.
Raising a grievance is putting your problem, concern or complaint to your employer informally at first (by perhaps having a private word) or if that fails, more formally, perhaps in writing which will allow them to investigate and hopefully resolve your complaint.
One of the nine features , eg sex , race , disability , age , sexual orientation , religious belief, transgender reassignment , marital status and pregnancy.
The concept of a protected conversation was introduced in 2013 enabling an employer to enter into discussions (“out of the blue”) with an employee with a view to terminating their employment under a settlement agreement, without the parties being able to rely on the details of the conversation as evidence in an unfair dismissal claim. The purpose of the legislation is to enable employers to facilitate the exit of underperforming staff without the necessity of going through a lengthy formal performance management process which can be stressful for both parties.
Settlement agreements are legal contracts between an employer and an employee (or former employee to terminate the contract of employment. We often see settlement agreements in the following circumstances:
- Performance review
- Disciplinary process
The agreement usually contains provisions for the following:
- Payment in lieu of notice (unless the employer wants you to work your notice);
- A sum equivalent to any accrued, unused holiday
Any payment in lieu of notice and holiday pay with be subject to your usual tax and national insurance deductions.
Depending on the circumstances, sometimes there may be an ex-gratia (one-off) payment. This is often referred to as the termination payment and ideally should be an incentivised sum of money to sign the agreement. This sum is tax free up to £30,000.
Constructive Dismissal is where your employer has acted in such a way towards you that it breaches your contract and allows you to leave your job and treat yourself as dismissed. Whilst your employer has not actually fired you, they may have forced your employment to come to an end by their behaviour. If the contract has been brought to an end, you will not be required to work your notice. An example of this would be where your employer persistently bullies you and forces you to leave the job. A Constructive Dismissal Claim may either be brought about by one particular incident or it may be a series of incidents culminating in a ’last straw’.
Remember, Constructive Dismissal is not always easy to prove and it is important you consider your position very carefully before leaving your job. To prove Constructive Dismissal you need to show that your employer’s actions were sufficiently serious to allow you to leave your job. It is not necessarily enough that you consider that your employer has acted unreasonably.
A claim for Constructive Dismissal must be submitted to an Employment Tribunal within three months less a day of the date of your resignation.
You should generally try and raise a grievance with your employer before resigning to give them the opportunity of trying to resolve the problem. A failure to do this could reduce any compensation that you recover by up to 25%.
To have a Constructive Dismissal claim, you need to consider:
- Have you been employed for 2 years?
- Has your employer broken an express term of your contract?
- Has your employer acted in a way calculated or likely to break down your relationship of mutual trust and confidence?
If your employer is concerned or unhappy about your work, they may look to take disciplinary action against you. Examples of possible concerns include: the standard of your work, your behaviour at work and your level of absence from work.
Your employer is not obliged to discuss matters with you informally. Instead, they may decide to take disciplinary action formally, especially if the matter is serious.
If your employer decides to take disciplinary action, they should set out in a letter the alleged misconduct or poor performance and the possible consequences you may face.
Discrimination can be either direct or indirect.
The concept of direct discrimination, victimisation and harassment applies to discrimination related to gender, being married or having a civil partner, race, religion or belief, sexual orientation, age and disability.
You are eligible to make a claim for discrimination if you are a job applicant, apprentice, employee, former employee, contract worker, or working on a contract personally to execute work.
There is no minimum length of service required.
To be successful in a claim for Direct Discrimination, you must be able to show that:
- You received less favourable treatment because of a protected characteristic, for example, race or age, etc.
- The treatment was different to others. It is not enough to be simply unfair treatment, you have to show that the treatment was a result of one of the factors noted above.
- You have a comparator. It is useful (but not essential) to find a real-life comparator.
Indirect discrimination is where your employer has applied a provision/criteria or practice which disadvantages you and which would tend to disadvantage others of your race, sex, age, etc. It is not unlawful if your employer can justify the provision or practice by showing that it is a proportionate means of achieving a legitimate aim.
In the vast majority of cases, before you can proceed to lodge a claim with the Employment Tribunal, you must notify ACAS of your intention to do so. ACAS will then offer the opportunity to use Early Conciliation. This is a process designed to enable the parties to settle their workplace dispute without going to tribunal. Reaching a settlement through conciliation is quicker, cheaper and less stressful for all concerned than a tribunal hearing.
The process involves submitting a form (Early Conciliation Notification Form) which is a very simple process by which you confirm the brief details of the dispute and the name of the employer. ACAS will then contact you to go through the information provided and explain the process. They will then contact your employer to see if they wish to engage in conciliation. If the matter is resolved, ACAS will deal with the necessary forms for you to sign. If the matter is not resolved, ACAS will then issue a certificate which then allows you to lodge a claim in the Employment Tribunal.
Serious misconduct eg theft , fighting , fraud, refusing to carry out an instruction.
Unfair Dismissal occurs when your employer dismisses you for an unfair reason and/or they do not follow the correct procedure for the dismissal.
A Claim for Unfair Dismissal must be submitted to an Employment Tribunal within three months less one day from the effective date of termination of the employment (usually the date of leaving the job).
Your dismissal may be deemed as “fair” if it was for one of the following reasons:
- Capability or qualifications for the job
- Some other substantial reason of a kind which justifies your dismissal
If your Employer is going to dismiss you they should:
- Advise you that they are commencing a procedure that may culminate in your dismissal
- Invite you to a meeting and inform you of their decision
- Allow you the right to appeal your dismissal
To have an Unfair Dismissal claim, you need to consider:
- Have you been employed for 2 years? If not, you cannot make a claim for Unfair Dismissal unless one of the statutory exceptions applies.
- Was there a fair reason for your dismissal?
- Was it reasonable for your employer to dismiss you?
- Was a fair procedure followed?
Wrongful Dismissal occurs when your employer breaches the terms of your employment contract by dismissing you. For example, by not giving you the required notice period. Your employer may be entitled to dismiss you without notice if they can show that the reason for your dismissal was gross misconduct.
You can issue such proceedings in an Employment Tribunal. However there is a cap on the amount of compensation that can be recovered; currently this is £25,000. Therefore it may be better to bring a civil claim in the County Courts for breach of contract, depending on the size of your claim. Please note that if you are bringing proceedings in the County Court, there will be a court fee to pay and this will be dependent on the size of your claim.
This depends upon a number of factors including salary, age and length of employment.
We also consider whether there is any underlying dispute such as any discrimination towards the employee and whether the employer is afraid of any reputational damage which may result if proceedings were issued as normally these will become public.
The employee’s notice period will also be a significant factor and is usually the starting point for the settlement figure.
An average termination payment would be around 2 to 4 months gross pay which is in additional to the other components including notice pay and holiday pay (where applicable).
Our settlement agreement calculator can give you and idea of what amount could be paid.
The money is usually transferred to you between 14 and 28 days from signing the agreement or the termination of your employment. It is often expressed in the agreement when you will receive your money. We also see reference to the money being paid to the employee on the next payroll.
The government has now passed emergency legislation relaxing the restriction on carrying over the 4 weeks statutory leave with effect from 26th March 2020. This will allow employees to carry over untaken leave up to 2 years.
Although it may appear that Settlement Agreements only benefit employers, with expert advice from our Settlement Agreement solicitors here in Leeds, you can ensure that all issues between you and your employer are resolved and you receive a fair and appropriate settlement.
All employees and workers are covered provided that they were on their employer’s PAYE payroll on 28th February 2020.
Employers tend to favour settlement agreements because they can resolve disputes amicably and quickly but also, the terms of the agreement ensure no claim can be brought in the future by the employee.
Settlement agreements can also be highly cost effective for both the employer and the employee. If a claim is brought in the employment tribunal, legal costs are not recoverable therefore, terminating employment under the terms of a settlement agreement can save time, money and stress.
The law stipulates that it is a legal requirement for a solicitor (or other accredited advisor, for example a trade union official) to review the terms of a settlement agreement.
A solicitor will review the terms of the agreement and give legal advice on whether the terms are favourable. We do not only consider the financial elements but also whether there are any restrictions which may stop you finding a new job. Also, a solicitor will consider your employment rights including whether there is any discrimination or potential flaws which may give rise to a potential claim.
These agreements are designed to draw an employment contract to a close or to make amendments to a contract in a fair and reasonable way. You should not be prejudiced as a result of the process.
It is normal for the employer to contribute towards the employees legal costs and this is typically between £250 and £500 plus Vat.
Our employment solicitors are acknowledged in Legal 500 and Chambers & Partners as being highly experienced in settlement agreements. Where appropriate we will negotiate the terms of an Agreement on your behalf and ensure that your best interests are fully protected.
Strictly speaking, the answer is yes. However an employer could attempt to negotiate a change in terms such that any annual leave above statutory leave does not accrue during furlough leave. This has been a particular problem but the government has now passed emergency legislation relaxing the restriction on carrying over the 4 weeks statutory leave with effect from 26th March 2020. This will allow employees to carry over untaken leave up to 2 years.
In order for a Settlement Agreement to be binding it is a requirement that you receive independent legal advice. It is common practice for the employer to contribute to your legal fees and the amount of the contribution should be set out in the Settlement Agreement. If the contribution offered is unlikely to cover the cost, we shall try to obtain an increase from your employer in the first instance.