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Founded in 1881, Kerseys assist business on a wide range of employment law matters, including redundancy programmes, employee management, human resources, disputes, and recruitment
We use our expertise and experience to ensure that we provide a high-quality and cost-effective employment law service to all of our clients.
Below are a breakdown of the specific areas that we deal with as well as the various matters that we can assist you with.
We can devise, advise on, and implement restructures and redundancy programmes for you. These will allow you to ensure that your business has the right resources going forward. This can include putting in place a fair selection process and a proper consultation process that will ensure you don’t unfairly dismiss any of your employees or discriminate against them.
We can prepare a timeline for you, manage bumper redundancies, draft letters to individuals and any collective body, prepare selection criteria, assess any selection you make, prepare crib sheets and scripts for the consultation meetings and deal with any appeals.
If you are selling part or all of your business or buying another business, we can advise you on what you need to do as well as preparing all the necessary documentation, undertaking due diligence and ensuring that you comply with the very specific legal requirements in such a situation.
We can help you with any disciplinary or grievance that you may have.
We can offer as much or as little help as you need. Whether you just want to have a quick chat with us about the matter, want our helpful crib sheets and scripts, or you want us to run the whole process for you, we can provide the assistance that you want and need.
We can also help you manage any employee who is off work on sick leave. We will help you to use a strategy and put processes in place that help you reduce the impact of an employee’s sickness on your business.
Our support will make any process as stress free as it can be, whilst also ensuring that you minimise any exposure to a legal claim.
In the event that your relationship with an employee can no longer continue, we can assist you with managing that employee’s exit. This can include arranging an exit interview, preparing a termination letter and advising on, negotiating, preparing and completing a settlement agreement if it is appropriate.
We help employers with day-to-day HR issues such as:
We act for businesses in contentious employment matters. We are experts at resolving disputes and we are committed to working out the most cost-efficient way of resolving issues for you by:
Kerseys can help you with the process of managing your legal obligations to your employees, from recruitment through to your responsibilities when employees leave. We can guide you through the following areas:
We can help you prepare job descriptions and interview questions. This will not only help you attract the ‘right’ employee, but we will also help you avoid the pitfalls of recruitment such as discriminating against a candidate.
We can also help you with your legal obligation of checking a candidate’s legal right to work in the UK.
Once you’ve chosen your new employee, we can prepare and issue an offer letter for you.
We can also draft a contract of employment, which will clearly set out the contractual relationship between you and your employees and ensure that your business is protected if the employee decides to leave.
If you haven’t already got a staff handbook, then we can prepare one for you. A handbook will allow you to set out the policies and procedures that you will use to manage your business and employees. It will also let your employees know what is expected of them and how you operate your business.
If you already have a handbook, we can review and update it for you so that it takes account of any changes in the law or best practice.
We offer a full Employment Tribunal service. We can assist you with preparing your response to a claim (ET3), undertaking disclosure of documents to the other side, preparing documents such as witness statements and representing you at any hearings.
Our wide-ranging services cover everything from HR consulting to litigation. Your services will be ‘joined up’, with everyone fully aware of your issues and opportunities. This ensures that your options and outcomes are not only fully compliant but will be guided by best practice and will provide excellent value for money – we guarantee we will always offer you the most cost-effective solutions.
At the start of the retainer period, we offer a free initial health check of your existing employment contract and HR policies. We support you in every way by not only offering advice but also by being alongside you to ensure implementation. If required we will be on-site, involved and always ready to consult.
It is legislation that governs employer and employee relationships, including trade unions. Many of the laws look to outline and protects UK worker’s rights and employee’s rights. We find the employment rights in the UK in various acts, regulations and laws.
There are 3 main types of employment status under the law:
It is essential that, as an employer, you are knowledgeable about employment legislation and laws. There are several acts and laws that protect employees and worker’s wellbeing.
Let’s look at what employment law covers, as well as the reasons for it to exist in the first place.
You have a duty to abide by employment law and it’s important to have a good understanding of their obligations.
Failing to follow these correctly and violating employee rights in the UK could allow staff to bring claims to an employment tribunal.
It covers a wide range of issues relating to the work environment and processes. Here are some examples of what’s covered by employment law—including:
Having a list of key employment legislation in the UK is a great way for you to keep on top of them. There are a core set of acts that embody the main parts of employment law.
By regularly reminding yourself of these laws and your responsibilities as an employer, you are far less likely to break them inadvertently.
Here are the most important pieces of employment law legislation and key information on these laws.
An employee’s rights are determined by their employment status. This can be determined by a few factors:
There are 3 main types of employment status under the law:
As an employee, they have rights set out by employment law. These can include:
As a worker, they have rights set out by employment law. They are slightly different to employees but are still protected by many of the same laws. These can include:
Rights for the self-employed
Despite the nature of the employment type, those who are self employed are still protected by employment law legislation. It is not as comprehensive as the previous employment statuses, but there are still some that should be taken into account. They are as follows:
While not directly employment law, health and safety legislation also affects employer and employee relationships. You need to understand your responsibilities towards health and safety in the workplace when navigating employee issues.
The Health and Safety at Work etc Act 1974 is the primary piece of legislation covering occupational health and safety measures in Great Britain. It’s sometimes referred to as HSWA, the HSW Act, the 1974 Act or HASAWA.
These acts place a duty on employers to protect their health, safety and welfare while at work. This applies to all of those on the premises, be that workers, temps or even clients and the general public.
The Health & Safety Executive (HSE) was set up under HASAWA. It enforce these duties and to penalise non-compliance.
What are the 3 basic employment rights for a worker in health and safety?
The various acts and legislation outline that all employees or workers have 3 basic rights when it comes to health and safety in the workplace.
This shows that, while not strictly employment law, these rights and acts have an effect on employee and employer relationships.
For example, dismissal for refusal to work in an unsafe environment would be unlawful under health and safety rather than employment law.
IR35 also known as “off-payroll working,” refers to the United Kingdom’s anti-avoidance tax legislation. The purpose of the IR35 regime (and of other regimes involving intermediaries) is to prevent the avoidance or reduction of tax and National insurance contributions (NICs) by employees who are disguised as contractors.
Essentially, IR35 affects all contractors who do not meet HMRC’s definition of ‘self employment’.
What are the off-payroll working rules?
The off-payroll working rules can apply if a worker (sometimes known as a contractor) provides their services through their own limited company or another type of intermediary to the client.
An intermediary will usually be the worker’s own personal service company, but could also be any of the following:
The rules make sure that workers, who would have been an employee if they were providing their services directly to the client, pay broadly the same Income Tax and National Insurance contributions as employees.
The client is the organisation who is or will be receiving the services of a contractor. The client will be responsible for determining if the off-payroll working rules apply. HMRC will be able to levy fines and interest for failure of businesses to comply with IR35. It is therefore, important to ensure that your business is compliant with IR35 in order to avoid backdated demands from HMRC.
There are also several other pieces of UK legislation that, although not solely related to employment law, contain key employment law information. These are:
You can see the pricing and services for Unfair or Wrongful Dismissal for Businesses here.
It is a dismissal that is done so in breach of contract. For example where an employer dismisses an employee usually for gross misconduct and refuses to pay the employee the notice pay and benefits that the employee would have received had the employer not dismissed the employee for gross misconduct.
Wrongful dismissal claims are also often brought in connection with constructive unfair dismissal claims. This is where the employee resigns with immediate effect in response to the employer’s fundamental breach of the contract of employment. Under such circumstances, the employee has no alternative other than to resign with immediate effect. As such, the employee is prevented from working their notice and receiving the benefits for that period.
An employee may pursue a claim for unfair dismissal where they have been dismissed by their employer and who, in most cases, has the requisite two years’ qualifying period of service. The qualifying period does not apply in most cases where the dismissal is for an automatically unfair reason such as whistleblowing or the dismissal is linked to discrimination.
There are circumstances in which an employee who meets the qualifying criteria may not be able to pursue a claim, such as for example, where the employee does not have the legal right to work in the UK or they are out of time to bring a claim.
When there is a dispute between an employee and employer, the employer may choose to use settlement agreements to resolve the issue.
Using a settlement agreement will allow you and your employee to come to an agreement about the termination of their employment (in most cases). The settlement agreement will detail what payments the employer will make to the employee and to record any other agreement reached between the employer and the employee. The settlement agreement will also provide you with the reassurance that the issue has been concluded without the risk of ending up in an employment tribunal or other court.
Without Prejudice Discussion/Protected Conversation
As an employer once you have decided that you would like to offer a settlement agreement to an employee, it is important that you ensure that the offer is made via a “without prejudice discussion” or as part of a “protected conversation”. The offer to settle with the employee can be made in writing or verbally. If the employer makes the offer in a “without prejudice discussion” or as part of a “protected conversation”, this will prevent the employee from using the employers offer against the employer in a court or employment tribunal if the employee decides not to accept the settlement offer and proceed with a claim for unfair dismissal together with any other claim that the employee may have against an employer.
There is a distinction between a “without prejudice discussion” and a “protected conversation” (off the record conversation). A “without prejudice discussion” can be held if there is an existing dispute between an employer and an employee. A “protected conversation”, differs from “without prejudice discussions” and the employer needs to be careful as to which conversation is appropriate to have. An employer can have a protected conversation even where there is no existing dispute with an employee. Protected conversation derive from s.111A of the Employment Rights Act (ERA) 1996. Any discussions that have been held by way of protected conversation are inadmissible in employment tribunal proceedings under s.111A ERA1996.
At the outset of any discussion or conversation employers should make it clear to an employee that what is said is protected and/or without prejudice. The same goes for any correspondence an employer and employee may have. You can do this by stating it at the top of each letter and email.
What happens to the employee during the negotiation period?
As an employer you need to consider whether you want your employee’s employment to end immediately or at the end of their notice period. If the employer chooses to terminate their employment immediately, then the employer should pay the employee in lieu of their notice period. Alternatively, the employer can have the employee work their normal amount of notice. Some employers also choose to place employees on garden leave for the length of the employee’s notice period. Whilst on garden leave the employee is expected to refrain from attending work or contacting employees or customers of the employer but is still expected to be report to work if required.
Payments under the Settlement Agreement
The settlement agreement will state what is due to the employee. This will usually include their notice pay, outstanding holiday pay and any bonus and commission payments. These payments will have deductions for income tax and employee National Insurance Contributions made from them.
It is also usual for an employer to make non-contractual/tax free payment to encourage the employee to accept the settlement agreement. This payment is often known as an “ex-gratia payment”. The amount offered by the employer depends on what the employers are prepared to offer and also on negotiations between employer and the employee. For example, if an employer is offering a settlement agreement instead of proceeding with any disciplinary measures, the ex-gratia offer may be minimal or the employer may elect not to offer an ex-gratia payment at all, depending on the circumstances. It may be enough that the employee’s employment is not being terminated due as a result of disciplinary action and as such their employment remains unblemished and this may be enough of an incentive for them to accept the terms of the settlement agreement.
Tax and tax indemnity
As already stated, income tax and employee National Insurance Contributions will need to be deducted from the payments that the employee is contractually entitled to.
The ex-gratia payment, must truly be a termination payment and can be paid to the employee without deducting tax and national insurance. The Income Tax (Earnings and Pensions) Act 2003 (ITEPA) is the legislation that enables the employer, to make the tax free payment to the employee. Under section 403 of ITEPA, the employer can pay the first £30,000 of the ex-gratia payment without any deductions. Any amount over that will be subject to deductions.
It is usual to include a tax indemnity clause in the settlement agreement so that the employee indemnifies the employer against employee’s contributions for any demand made by HMRC for income tax and employees National Insurance Contributions.
Returning company property
The employee may have company property that the employer requires the return of. The agreement will provide for this and how and when the property should be returned to the employer.
Given that the employment relationship with between employer and employee is coming to an end, an employer should think about including a clause that stops the employee saying anything disparaging or negative about the employer and anyone in the group (should there be group companies) together with associated persons such as employees, directors, shareholders etc.
There is no legal obligation on an employer to provide a reference for an employee. However, it is usual practice in settlement agreements that references are included and that the employer will agree to be bound by the terms of the reference whether any enquiries that are made orally are on no less favourable terms than the written reference. Providing for a reference in a settlement can be desirable for the employee and may be a useful negotiating tool for an employer to use when offering a settlement agreement. Some employers only offer factual references while others will provide more detailed references. It is important that should that the employer agrees to offer a reference for the employee that it is not a misleading reference.
Legal fees – Who pays for the employee’s legal advice?
There is no legal obligation for the employer to pay for the employee’s legal advice but as the agreement will not be legally binding unless the employee receives legal advice. It is standard practice for the employer to make a contribution towards an employee’s legal fees because the employee must be in receipt of independent legal advice on the terms and effect of the settlement agreement for it to be legally binding. Most employers contribute between £350 and £1,500 plus VAT towards their employee’s legal fees.
It is usual for there to be a confidentiality clause in the settlement agreement. This means that the employee and employer agree to keep the terms of the settlement agreement confidential save for certain exceptions such as to seek independent legal advice (both parties are free to seek legal advice), for example.
If the employee has post-termination restrictions in their contract of employment, then the settlement agreement should refer to these restrictions and remind the employee that they are bound by them less any period of time that the employee has spent on garden leave.
Alternatively, the employer may not have any post-termination restrictions in the employee’s contract of employment. However, as an employer you should consider whether you need to restrict your employee by way of post termination restrictions to prevent them from poaching your clients, customers, employees and/or suppliers. If you do want to include post-termination restrictions, the more narrowly drafted the restrictions are together with a sufficient period of time, the stronger your chances are of enforcing them. Fresh consideration (a payment) should also be offered if you are introducing post-termination restrictions for the first time.
Waiver of claims
In the settlement agreement the employee is agreeing to settle all and any claims that they may have against the employer, with the exception of accrued pension rights, claims for any unknown personal injury and the right to enforce the settlement agreement, as well as whistleblowing claims. As an employer think about whether there are any particular claims that the employee may have, and these can be specifically set out in the settlement agreement.
If you have any questions or need employment law advice or HR support, please don’t hesitate to contact us for a friendly chat about what your requirements are.
Much of the answer will lie in whether the employer has a contractual right to claw back training costs when an employee leaves. If there is no contractual right to claw back the training costs then an employer will be unable to recover the monies. In this situation an employer may try to deduct the costs from the employees’ salary whilst working their notice. This runs an increased risk of the employee making a claim of unlawful deduction of wages or indeed if the claw back that the employer made brings the employees’ salary under the national minimum wage, the employee can have a claim for non-payment of the national minimum wage.
However, even though an employer inserted a claw back clause in the employees’ contract of employment in an attempt to recoup on their investment, should an employee leave shortly after completing training or before completing the training, the employer needs to be careful that the clause is carefully drafted so as not to amount to a penalty clause. A penalty clause is a clause that can be construed as a punishment. As such, a penalty clause will not be enforceable by the employer.
In 2017 the government introduced the Apprenticeship Levy which is a tax on employers with a pay bill in excess of £3m. Those employers who pay the levy are able to access funding for apprenticeships and training. However, employers are unable to recover the levy from the apprentice if either the training terminates early or the apprentice leaves employment.
So what can an employer do when an employee leaves employment either during or shortly after the employer has invested in training for that employee?
For employers, it is important to have the contractual right to claw back training costs. However, the employer needs to ensure that the drafting of such repayment clauses are such that they are not deemed to be “extravagant and unconscionable”. The employer must make certain:-
• There is a sliding scale of repayments whereby an amount to be repaid by the employee reduces depending on the length of time that has passed between the completion of the course and the employee leaving employment;
• Allow the contractual right to deduct such training fees from the employees’ wages or notice pay;
• To have an obligation on the employee to repay the training fees at a reasonable level;
• After a certain period of time no such repayment by the employee is required.
With regard to National Minimum Wage, there is the concern that the employee would have a claim should the deduction from the notice pay make the employee fall below the National Minimum Wage requirement. Case law has clarified the position as to whether the employee would have a claim that where an employee resigns or is guilty of misconduct which results in the seeking of the repayment of the training fees by the employer, then such a deduction will not have to be considered for National Minimum Wage purposes.
If, however, the employer was to make the employee redundant and such a deduction would result in the employee receiving less than the National Minimum Wage, the deduction would then be taken into account.
The employer should also ensure that any such agreement for the repayment of training fees is entered into with the employee prior to the commencement of the training.
From April 2022, all workers aged 23 and over are legally entitled to at least £9.50 per hour.
They are the same thing but the National Living Wage is the title the government has given to the highest tier of the National Minimum Wage for those workers who are 25 and over.
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