Employees (those employed under a contract of employment) enjoy numerous employment rights and protections which have been passed into law by Parliament over many years. However, not all these statutory rights kick in from day one of employment – many only apply once an individual has completed a certain amount of service with their employer (known as qualifying service). Employment rights from your first day Employees are entitled to a variety of different legal rights from their very first day of employment, regardless of industry or profession. These rights can be broken down into several different categories. Pay rights From their first day, all employees have certain legal rights regarding their pay. These are: To receive at least the relevant rate of the national minimum wage , which is dependent on an employee’s age. To receive an itemised payslip showing gross pay, deductions and net pay. Not to have unauthorised deductions made from their pay. To be paid for accrued but untaken statutory annual leave on the termination of employment Paid/ unpaid leave Employees are also legally entitled to receive paid annual leave (28 days for a full-time worker) from the start of their employment. In the first year they can only take annual leave which has accrued at the time they wish to take holiday. In subsequent years this restriction does not apply. They will also be entitled to claim statutory sick pay, providing that they pay national insurance and have been off sick for four days in a row. Maternity and family leave Employees are entitled to take 52 weeks’ maternity leave and an employer must ensure that they return to the same job, even if they were pregnant when they started the job. They also have the right to take paid time off for antenatal appointments. Partners are entitled to take unpaid time off to attend up to two antenatal appointments with their partner. 52 weeks of paid adoption leave is also a day one employment right. All employees are entitled to take unpaid time off to deal with unexpected emergencies involving family members. Right to breaks and reasonable working hours An employer is legally obliged to provide an unpaid 20 minute break after working for six hours, as well as a daily rest break of 11 hours in every 24. Employees are also entitled to a weekly rest break of one day off in every fourteen. Equality and discrimination There are strict equality and discrimination rights applied to all workers, from their first day of employment. These are: Not to be discriminated against, harassed or victimised due to a relevant protected characteristic (i.e. age, disability, gender reassignment, pregnancy and maternity, marital or civil partnership status, race, sex, sexual orientation and religion or belief) To ask for reasonable adjustments to be made to enable you to do your job if you are disabled To receive equal pay to employees of the opposite sex doing the same or a broadly similar job, a job of equal value or a job which has been rated as equivalent If you are employed on a fixed-term contract, to be treated no less favourably than a comparable permanent employee e.g. in relation to pay, benefits and training If you are a part-time worker, not to be treated less favourably than a comparable full-time worker Other day one employment rights Disciplinaries and grievances In the event of a disciplinary or grievance matter, every employee has the right to be accompanied by a colleague or trade union representative at any formal hearing. Whistleblowing All employees are protected against detriment or dismissal due to whistleblowing. Personal data There is also the day one right to have your personal data dealt with in accordance with the Data Protection Act 2018, this includes ensuring that your personal data is fairly and securely processed and not kept for longer than necessary. Trade unions An employee have the right to belong to a trade union and take part in industrial action and not to suffer any detriment or dismissal for a union-related reason from the beginning of their employment. They also have the right to be informed and consulted on any proposed TUPE transfer or collective redundancies. Health and safety All employees, regardless of time served, are entitled to protection under the Health and Safety at Work Act 1974. The general duty is that the employer must take reasonable steps to ensure the health and safety of those at work. Employment rights beyond day one Following your first day of employment, an employee becomes entitled to more employment rights at varying milestones of service. After one month After a month of service, employees are entitled to more rights, several of which address the issue of pay if an employee is forced to stop working. These are the right to: Be paid, if you are suspended on medical grounds Be paid statutory lay off pay if you are laid off or put on short-time working Other rights following being employed for a month are: To be given a written statement of the main terms and conditions of your employment (from April 2020, the employer must provide this on day one) To be given at least a week’s notice of dismissal After 26 weeks Following 26 weeks of service, employees become entitled to several employment rights that are centred around parental needs, with more family-friendly working options becoming available. Your rights after 26 weeks are: To request (but not necessarily be granted) flexible working. To take paternity leave To take shared parental leave (if you are the mother of a child, other criteria apply to fathers/partners) After one year After being employed for one year, employees are entitled to take 18 weeks’ unpaid parental leave in respect of each child. This must be taken before the child’s 18th birthday. Rights only available after two years of employment There are a variety of important employment rights that only become available following two years of service. Unfair dismissal After two years, an employee has the right to bring a claim for ordinary unfair dismissal, protecting them from an employer terminating their contract without valid reason or without following a fair procedure first. However, it is worth noting that the two-year qualifying period does not apply if the dismissal is for certain reasons. This includes health and safety, maternity or family leave issues, whistleblowing or because the employee sought to assert a statutory right. Statutory redundancy payment Where the dismissal is due to redundancy, an employee is entitled to statutory redundancy pay only after two year’ services. The amount is capped (but rises every year) and is calculated based on age, pay and length of service. It is worth noting that an employer may have their own contractual redundancy scheme which applies with different rules to, or may offer to make an ex gratia redundancy payment to those with, less than two years’ service. Written reason for dismissal Following two years of employment, there is the right to request written reasons for dismissal form your employer. However, if the reason was for pregnancy or a family leave related reason, this right applies from the beginning of employment.  Rights before becoming an employee It should also be noted that even before someone becomes an employee, they have certain legal protections as a job applicant. Mainly this encompasses the right not to be discriminated against (due to any protected characteristic) and where the applicant is disabled, an employer must make reasonable adjustments made to the interview/selection process.

Although social media is a relatively new innovation, it has quickly succeeded in becoming part of everyday life. An estimated two-thirds of the UK population are now social media users. While numbers vary across different age groups, it is likely that most employees will have an online presence of some form. It’s therefore important for employers to have a company policy regarding their employee’s social media use at work, as the consequences of misuse can have very serious implications for an employer’s business and reputation. Why is an employee social media policy necessary? Having a workforce who are savvy with digital communication can be highly beneficial for a business. However, it can also lead to a blurring of the lines between the private and public sphere. This can cause problems when it is not clear to employees what they can and can’t do in the workplace (and outside of it) when it comes to social media use. A workplace policy, which sets distinct boundaries will not only create consistency and assists those tasked with day-to-day management of employees, but can also help an employer defend against any relevant legal claims which might arise. What should be included in a social media policy? Guidelines on personal social media use Not everything employees do and say on their personal social channels can be regulated by their employer. It’s especially difficult when this occurs outside of working hours and is truly personal in nature, with no obvious link between the individual and their employer. However, in our “always on” culture, with many people working from home, there may be scenarios where it is difficult to tell where the line is drawn. It is also increasingly difficult to ascertain whether an employee is acting in a private capacity or in a work capacity, where it would be appropriate for workplace rules to apply. It is important for employers to educate staff about how their behaviour on personal accounts can affect the business and how staff can recognise and avoid any potential conflicts. If it is obvious that an individual works for a certain employer then how they speak online may make others read their views as a reflection of their employer, even if the employee is not intending to speak on the company’s behalf. Individuals may not mean to disclose who their employer is, but it could be obvious from clues in their posts. For example, posting an image which shows the employee’s work uniform in the background. Employers need to use their company policy to communicate basic expectations about employee social media use, such as: Requiring employees to avoid talking negatively about colleagues, their employer and its customers, clients or contractors. The policy could remind employees that the right place to deal with any work-related grievances is internally to the HR team or an employee representative, rather than expressing them publicly. Reminding employees to respect the law when posting on social media, in particular not to contravene relevant data protection or copyright laws. Attention should be drawn to other company policies which may also be relevant to social media use, such as bullying and harassment or equality and diversity policies. Employers often react very severely to any alleged misconduct involving social media and move to dismissal without hesitation. However, such a response has been found to be unfair by the employment tribunals. Such decisions are a warning to employers to avoid knee jerk reactions in these cases. Case studies: unfair dismissal related to social media In Taylor v Somerfield, an employment tribunal found that an employee was unfairly dismissed for posting behind-the-scenes video of the supermarket on YouTube. It was highly relevant that the video had only received eight hits, Somerfield was not identifiable from the footage and no complaints about the clip had been received from customers. In contrast, in Preece v JD Wetherspoons plc an employment tribunal held that a dismissal was a fair sanction for a pub manager who had a conversation complaining about two of her customers on Facebook, while she was still at work. The tribunal found the employer’s actions were justified in order to protect its business. Usage of social media in the workplace: It’s crucial for employers to set clear guidelines on whether or not its employees are permitted use social media at work at all. If they are permitted to access social media during work hours, how long for and what exactly can they use it for? Where employees are using channels such as LinkedIn or Twitter for business related purposes then it should be clear who owns the contacts, passwords etc. and what happens to the accounts if the employee leaves the employer. Employers may even wish to include a term in employment contracts requiring employees to hand over all passwords and relevant data in certain circumstances.  Confidentiality and data protection: Employers will want to keep client details or financial data confidential for commercial reasons. In addition, stringent new rules around the disclosure of personal data are now in force which cover both employers and individuals. A social media policy should define what confidential informational and personal data is and be clear that employees cannot share this on their personal social media accounts. Consequences of abuse of rules: A social media policy should make it clear what the potential consequences are if the policy is breached. This is likely to involve disciplinary action up to and including dismissal, depending upon the seriousness of the breach. If it is particularly important to the employer, for example because of the nature of their business, that certain rules are observed then it should be made clear that any breach may be regarded by the employer as gross misconduct. This means that an employer can dismiss immediately, with no notice and no payment if such rule is broken. Although the circumstances of two cases will never be exactly the same, it is helpful for managers to have a framework to work from and for employees to understand the likely consequences of their actions. Define roles and responsibilities and educate staff As social media becomes increasingly important for businesses, it is vital to set roles and define responsibilities. Specific social media responsibilities could include maintaining brand guidelines, running crisis response, delivering social media training and social media monitoring. Understanding what is expected of them regarding social media usage at work will help employees to avoid breaching company policy and guidelines, as well as ensuring that the business retains a positive online presence. For further information about how an employer may use social media, and it’s limitations, please see our related article.

Most people have heard of equality and diversity but, what does this actually mean? Where did the phrase come from and what are employers’ legal obligations when it comes to ensuring equality and diversity in the workplace? Definition of equality and diversity Equality and diversity are not legal definitions. Rather, they are just ordinary words which have been adopted by HR. Even amongst HR practitioners slightly different meanings are understood. The word equality suggests eliminating discrimination in the workplace and ensuring equal access and equal opportunities for all. This would lead to fair outcomes for all, regardless of starting point. This does not necessarily mean everyone has to be treated exactly the same. Where an employer is pursuing the elimination of discrimination, it could lead to people being temporarily treated differently. For example, an employer could take positive action to help under-represented groups achieve management positions. This would not go as far as ring fencing certain roles for certain types of people but can mean that under-represented groups would receive extra training, mentoring or other encouragement to apply for such positions. Diversity, on the other hand, is about recognising difference and creating a workplace culture which respects, values and utilising all differences. This does not solely apply to race and ethnicity but, all types of differences such as age, disability and upbringing. There are recognised business benefits associated with diversity, for example different perspectives can lead to better product development or marketing ideas. The history of HR As with other sectors, the world of HR changes and evolves; as new theories and ways of doing things gain traction, the language and labels used also move on. It is quite usual for ideas which began in the USA to migrate to the UK several years later. Not that long ago, the phrase ‘equality and diversity’ wasn’t widely known in the UK; it was much more common to see the phrase equal opportunities being used. Today, you may also see the phrase equality, diversity and inclusion. This is due to a growing acceptance that treating everyone the same was not going to lead to equal outcomes, as people come from different starting points and have different needs. Inclusion is generally accepted as the practice of accepting someone as they are – breaking down prejudice and challenging attitudes – and making changes accordingly. One example might be employing an autistic person and allowing them to wear ear defenders to work in the office as they can get distressed by background noise. Equality and diversity: policy vs the law Large employers will be concerned to make sure that their HR departments are keeping up with the latest HR practices and trends, for reputational and recruitment reasons. However, smaller employers may not have the resources or inclination to stay “on trend” with to personnel matters. So, how much do employers legally have to do when it comes to equality and diversity and how much is discretionary? The only legal requirement on an employer as regards equality is to: ensure they comply with equal pay legislation i.e. they pay men and women the same for doing the same (or equivalent) jobs; they do not discriminate against job applicants or staff when it comes to benefits, promotion and other workplace matters; do all they reasonably can to prevent discrimination and harassment of staff in the workplace by others (this is cultural and comes from having the right policies in place, giving adequate training, and demonstrating strong leadership). Although it is not a strict legal requirement i.e. there is no direct penalty for not having one, all employers are likely to have an equality and diversity policy in their staff handbook, as a minimum. Often, this goes no further than simply explaining what unlawful discrimination and harassment is, stating that the employer will not tolerate it and making it clear that anyone who discriminates or harasses in the workplace may be dismissed. Even a basic policy can help an employer defend an unfair dismissal or discrimination claim. Enlightened employers may wish to have more comprehensive policies and programmes to help create a culture where equality and diversity is valued but, there is no legal requirement to do so. Reporting a gender pay gap Large employers with 250 or more employees must report annually on their gender pay gap – that is, the difference between the average pay of men and women in the organisation. While the requirement to report is legally binding, it is not unlawful for an employer to report a gender pay gap, however big it is. However, for reputational reasons, an employer may wish to publish details about the measures it is taking to reduce its gender pay gap. This is likely to involve equality and diversity measures, such as positive action for females at recruitment and promotion stages. There are also plans to extend the requirement for large employers to report on their ethnicity pay gap i.e. the difference in average pay of employees of different ethnicity in an organisation. It is not yet known exactly when this will be introduced. Requirements for public sector employers Employers in the public sector, including local government, schools, the civil service, police and NHS, have a specific legal equality duty, applied when they are exercising their public functions. This duty does not apply to private companies not carrying out public functions. The duty requires them to have due regard to the need to: eliminate discrimination, harassment, victimisation under the Equality Act 2010 ; advance equality of opportunity;  foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

Each party to an employment contract is entitled by law to a minimum amount of warning if the other party wants to terminate the contract. There are legal notice requirements for both employees and employers, depending on how long the employment has gone on for. The parties can agree between them to give each other more notice, but they cannot agree to less. Legal minimum notice The legal minimum period an employee must work differs for employee and employer, and largely depends on years of service. Minimum to be given by employer to employee during the first month of employment: no minimum between one month and two years of employment: one week between two years and 12 years employment: one week for each completed year of employment (e.g. someone who had been employed for three full years would be entitled to three weeks’ notice) employment for 12 years or more: 12 weeks Minimum to be given by employee to employer during the first month of employment: no minimum after one month of employment: one week While any provision in a contract for shorter notice is overridden by the above (so an employer cannot unilaterally give a shorter period), either party can waive their right to notice at any time. For example, an employer could agree to let an employee leave earlier than their notice period required. Equally, an employee does not have to actually work out their notice period. Instead, they could agree to accept a payment matching what they would have been paid if they were to work the notice. This is referred to as ‘payment in lieu of notice’. Occasionally, an employer may have the power simply to pay them in lieu without needing to get the individual’s agreement, if the employment contract provides for this. In this instance, an employee will be forced to accept a payment, rather their work their agreed notice. Exception in notice period for gross misconduct The only exception to the requirement for an employer to give a minimum amount of notice of dismissal is if the employee commits a very serious act of misconduct (“gross misconduct”). In these circumstances, the employer can legitimately end the employment contract immediately, without the employee having to work notice or receive a payment in lieu. This is known as “summary dismissal”. However, an employer cannot argue that an employee has committed gross misconduct in order to avoid paying them. Where an employer dismisses summarily, but the employee has not actually committed gross misconduct the dismissal will be both wrongful (in breach of contract) and potentially also unfair. This is assuming the employee has the necessary length of service to bring a claim. Breach of contract claims Any failure by an employer to give proper notice of termination to an employee, other than in genuine cases of gross misconduct, will entitle them to bring a claim for breach of contract. Damages will be the salary and value of other benefits (such as pension contributions) which would have accrued during notice proper given. Likewise, any provisions in an employment contract which purports to allow one party to give less than the statutory minimum notice period which applies are overridden. Payment in lieu of notice ends entitlement to benefits Where an employer has the power to make a payment in lieu, the legal effect is that the employment comes to an end immediately. This means that the termination date will usually be the date on which the payment is made. The consequences of this are that an employee will immediately cease to be entitled to the benefits they would have had were they still employed and at work. For example, they will cease to accrue pension contributions or holiday entitlement and they will no longer enjoy contractual benefits such as private medical insurance. In some cases, an employer may agree as part of a settlement agreement to continue providing such benefits for a period of time, but there is no legal requirement on them to do so. Employees often mistakenly believe that when they are paid in lieu, they also be paid for any annual leave that would have accrued had opted to work their notice period. However, annual leave entitlement stops as soon as the employment has been terminated by the payment in lieu. Ending employment this way is immediate, whereas deciding to work your notice obviously extends the time that someone is actually employed. There can be very good reasons for preferring to remain employed for a longer period. For example, if someone is about to become entitled to a bonus or share options a payment in lieu would potentially prevent them from being eligible for such benefits. However, payment in lieu clauses are generally drafted so that the discretion on whether to activate them remains entirely with the employer. Using a solicitor to negotiate with the employer will help prevent them using this power for their own gain. Refer to your contract for exact notice entitlement If you think you may want to give your employer notice or vice versa, check your most recent employment contract to ensure that it complies with the legal minimum requirement and whether or not it contains a power for the employer to pay in lieu of notice.

As we begin to spend increasing amounts of time working, it should come as no surprise that many people meet their partner at work. Many employers are now beginning to impose regulations surrounding workplace relationships. But what are the relevant legal rules around this, if any, and how far can an employer go in regulating such personal relationships at work? What does the law say about workplace relationships? There are no general legal rules preventing or governing relationships at work. However, employers may find it problematic from a business perspective. Having individuals who are involved in a relationship working alongside each other presents various legal and practical concerns for employers. For example, the real or perceived risk of a conflict of interest, confidentiality issues and a risk of disruption, or worse, possible legal claims if the relationship were to break down. UK employers are adopting American workplace relationship policies In the USA, it is common for employees to be required to enter into a “consensual relationship agreement” or “love contract” by their employer and some employers in the UK are now seeking to regulate personal relationships in the workplace. This might involve giving an undertaking not to have a personal relationship with any fellow employee or might seek to restrict those with whom an employee may have a relationship. It may also govern conduct between those in personal relationships. However, employers in the UK will find it very difficult to enforce a similar policy as the Human Rights Act 1998 provides a right to respect for private and family life (Article 8). An outright ban on romantic involvement in the workplace is unlikely to be proportionate other than in very limited circumstances where this can be justified due to the nature of the work, such as for certain roles in the police or military. Can employers impose these restrictions in the UK? While many employers in the UK might wish to copy their American cousins by imposing stringent restrictions on their staff’s behaviour, the position in the UK generally tends to be more employee friendly than in the USA. It seems likely that a UK employer who tried to force a love contract on its employees would risk claims of constructive dismissal, and possibly discrimination. No employment tribunal would enforce the terms of such a contract if they restricted personal freedom too much. However, there are some ways in which employers can regulate their workforce’s behaviour, through more discretionary policies which do not lay down blanket bans. How far can employers go in restricting workplace relationships? Rather than banning personal relationships between colleagues altogether, a more subtle approach would be to introduce a policy requiring staff to disclose a workplace relationship. This would allow the employer to take pre-emptive steps to avoid conflicts of interest. One such example may be to changing reporting lines, in the case of an employee reporting to their partner. This approach is more likely to be upheld. When dealing with relationships at work, employers are at risk of claims for sex discrimination if they treat one person in the couple less favourably than the other. For example, it should not automatically be assumed that a female employee will be transferred from their role in order to maintain confidentiality if she is in a relationship with a male employee in her department. It should also go without saying that employees in a homosexual couple should be treated no less favourably because of their relationship than someone in a heterosexual couple would be. Does your employer have a ‘relationships at work’ policy? These are still rare in the UK so the answer may very well be no. Without any relevant policy or rules in place to cover the situation, the mere fact of a workplace relationship will not be a reason to discipline an employee. However, inappropriate behaviour linked to the relationship is likely to be and can be dealt with under normal disciplinary rules. A relationship at work policy can assist an employer by setting out the expected standards of behaviour and providing a framework for managers when dealing with situations where staff are in a romantic relationship. If your employer does have such a workplace policy and this is breached, it will have a potentially fair reason to discipline staff. How can we help you? Having difficulties because of a relationship at work or trying to manage team members who are romantically involved? Then talk to our employment law specialists today. We’ll help you figure out the best way forward for you.

Britain appears to be experiencing hotter and hotter temperatures, but that doesn’t mean everyone will be able to head to the beach to cool off. For most workers it is “business as usual” regardless of the weather, but are you entitled to any protections when the workplace temperature soars? Or, can you clock off altogether once the mercury reaches a certain level? We consider employers legal obligations to their staff in high temperatures. Record breaking UK temperatures In July 2019, the record for the highest temperature officially recorded in the UK was toppled when the Met Office confirmed a temperature of 38.7C in Cambridge, exceeding the previous record set in August 2003 in Kent of 38.5C. Concerns about the effects of global warming appear to be justified by ever increasing temperatures and it looks like heatwaves could become a regular occurrence in the UK. Is it too hot to work? It may come as a surprise to learn that there are no legally enforceable minimum or maximum workplace temperatures. The only legal obligations is that: “During working hours, the temperature in all workplaces inside buildings shall be reasonable.” This obligation only extends to workers; it does not apply to members of the public who may be in the workplace such as customers at a shopping centre or in a cinema. What are ‘reasonable’ workplace temperatures? What is a reasonable heat to work in will entirely depend on the type of workplace. A reasonable temperature will also depend on the work activity being carried out and the environmental conditions of the workplace. For example, in manufacturing industries such as glass works or foundries, temperatures will naturally be higher to start with due to heat being generated by the processes involved. However, in such environments it is still possible to work safely provided appropriate controls are present. It is not just air temperature which needs to be taken into account. Other factors such as radiant temperature, humidity and air velocity are also significant. What is reasonable will be very different in an office or warehouse, where employees are not used to or trained for dealing with extreme heat. Minimum workplace temperatures The Health and Safety Executive’s Approved Code of Practice suggests the minimum temperature in a workplace should normally be at least 16C, or if the work involves rigorous physical effort at least 13C. However, these temperatures are not absolute legal requirements; the employer has a duty to determine what reasonable comfort will be in particular circumstances. Should I complain about the temperatures at work? If you are experiencing prolonged thermal discomfort then speak to your manager in the first instance. If a number of employees are finding work difficult in the conditions, then your employer should take action as it will be clear that the temperature is not reasonable. Employers have a basic legal duty to protect the health and safety of all their workers. As workplace temperatures rise, associated health risks (for example, dehydration) might arise, which an employer needs to take steps to mitigate. What can an employer do in extreme heat? Every employer has a basic legal duty to do all that is reasonable to take care of their employee’s health (both physical and mental) and safety in the workplace. The first step should be for an employer to undertake a risk assessment with regards to hot weather. This will help to identify where within the organisation employees are particularly at risk from high temperatures and what those risks are. Certain staff, such as those who are older or pregnant or disabled, may be more vulnerable to the heat. Once this information has been established then effective methods for mitigating the risks identified can be considered. When temperatures are particularly high, employers need to consider what measures they can take to assist employees. Given the seasonal nature of high temperatures, many of these steps need only be temporary. Examples include: Relaxing formal workplace dress codes and uniform requirements (although this may not be possible in work environments where personal protective clothing must be worn). Allowing people to work at a slower rate, giving longer breaks or rotating workers more frequently. Moving workstations out of direct sunlight. Providing blinds and shades. Postponing certain work until weather is cooler. Being more flexible over when hours are worked to allow for an earlier/later start or shortening shifts temporarily. Providing desk fans and/or mobile air conditioning units. Reminding all staff to stay well hydrated and encourage this by providing free drinks. Ideally, employers will consult with employees or their representatives to establish sensible means to cope with high temperatures. Given the fact that we are seeing extreme temperatures more regularly, it would be helpful for employers to establish a policy – ideally in consultation with staff and their representatives – which sets out how the employer will respond to high temperatures as well as what is expected from employees. This should be added to the staff handbook and communicated to all employees. Further information on workplace temperatures The Health and Safety Executive has lots of information on extreme heat at work on its website. Including: general advice on what the law says employee’s guide to temperature manager’s guide to temperature  How can we help you? Got questions about your rights in the heat? Then talk to our employment law specialists today. We’ll help you figure out the best way forward for you.

Grievance procedures exist to enable employers and employees to resolve issues which may arise during the course of the working relationship. All employers are required to provide a framework for dealing with complaints from their staff. In this article, we provide some hints and tips for individuals on bringing a complaint using their employer’s formal grievance procedure. What is a grievance? Grievances are concerns, problems or complaints that employees raise with their employers. This could be anything that the employee is unhappy about which is related to the workplace. This is extremely general; it may be about something the employer has done, or not done, about working conditions or terms and conditions, the actions of a fellow worker or about a third party in the workplace. Examples include: not being paid enough or fairly in comparison to a colleague dissatisfaction with the level or eligibility for benefits and bonuses not being promoted workload work hours issues around workplace uniform or dress code not being considered for training or career progression working conditions, including health and safety, equipment (or lack of) or toilet/washroom facilities bullying or harassment in the workplace management style/attitude towards you personality clashes with other workers terms and conditions being varied without agreement failure to agree flexible working/change agreed arrangements discrimination at work (on the basis of a relevant characteristic such as sex, age, religion or disability) refusal to make adjustments to assist someone with a health/disability issue being wrongly accused or unfairly disciplined for something the employer not following a set procedure correctly to complain about the way a redundancy situation is handed Why would an employee bring a grievance? Grievances are really a plea from an employee to their employer to listen to them and take a particular workplace matter seriously. Often, employees will have tried and failed to reach an informal solution, or just feel that no one is listening to them and a formal approach is the only way they can escalate matters. An employer who receives a grievance must treat this as a red flag and as a matter which needs proper attention, in a timely manner. An employer ignores this action at their peril – failure to deal with an employee grievance in a reasonable amount of time can entitle them to resign and claim constructive dismissal. Bringing a formal workplace grievance should focus minds and hopefully make the employee feel like they are taking a positive step towards a resolution. Particularly where the complaint involves bullying or harassment at work, it is important to get matters documented and escalated to the appropriate level of management. Some organisations refer to their workplace grievance procedures as “problem solving” procedures, often because it sounds less confrontational and more collaborative. It’s important to remember that the rationale for such a process is to enable the parties to resolve their differences and carry on working effectively. It may not be necessary to use the formal procedure Many workplace complaints can be dealt with informally and employees are usually encouraged to raise issues with their line manager in the first instance. If the complaint is related to their line manager then, if possible, it can be raised with a different manager or with HR. A private conversation might be all that is required to deal with a relatively minor concern. However, if the complaint is more serious or cannot be resolved informally, the employee needs to submit a written complaint in accordance with their employer’s formal grievance procedure. Where do I find the grievance procedure which applies to me? Firstly, an employee should refer to their contract of employment which will set out the process in full. If not, it must refer you to another document, such as the staff handbook, which contains the details of your employer’s formal grievance process. Nowadays many employers have their staff policies online, so search your staff intranet if you have one. If you still are unsure, then ask your HR department or relevant personnel manager. What does a grievance procedure look like? A formal grievance procedure is likely to be modelled on the best practice process set out by ACAS in its Code of Practice on disciplinary and grievance procedures. In summary, this requires: an employee to set out their workplace grievance in writing the employer to then hold a meeting to discuss the grievance the employer notifying the employee in writing of its decision the employee being given a right of appeal if they are not satisfied with the initial outcome an appeal meeting being held (if required) the outcome of the appeal being notified to the employee Do I have to put my workplace grievance in writing? Yes, this will be required to initiate the process. It will also avoid potential misunderstandings regarding the details of your grievance and ensure the employer is in no doubt that it is a formal complaint which they need to deal with, within a reasonable amount of time. A letter or an email will satisfy the requirement that the grievance is made in writing. What to include in a grievance letter/email Your formal written grievance should give your employer as much detail as possible about the nature and circumstances of your complaint. This would include the date, approximate time and location of any relevant incident(s), as well as the names of any witnesses. Stick to the facts and avoid emotive language and statements or, being abusive. If there are relevant documents such as letters or emails, it will be helpful to include copies of these. It is also important that you state the outcome you are seeking if you can – what would you like to happen as a result of your grievance? Remember that the procedure is intended to enable the parties to resolve their differences, so make it clear what action will satisfy you. When do I submit my grievance? Do not delay too long. When raising a formal grievance, there should not be an unreasonable delay between the incident (or omission) giving rise to the complaint, and the complaint being made. If you subsequently change your mind, you can always withdraw your complaint, but if you wait too long before bringing a complaint to your employer’s attention, they might not be able to investigate appropriately, or may not take it so seriously. What happens next? Once a formal grievance in writing has been received, your employer will invite you to a meeting to discuss it. Ideally, this should be within five working days of receipt of the grievance, however, the employer’s own procedure may lay down a different timescale. What is important is that any timetable is followed and that the grievance is dealt with without unreasonable delay. The meeting will be held in private in a place where there will not be interruptions. There will be a note-taker to be present to accurately record the meeting (this is likely to be someone from HR). If you have a disability, let your employer know if you will need reasonable adjustments to be made to enable you to attend. An employee bringing a grievance involving their employer has a legal right to bring a companion along to support them, if they wish. This companion must usually be a fellow worker or a trade union official or representative. It will not usually be reasonable to ask for a family member or solicitor to accompany you, unless this is considered a reasonable adjustment. You must let your employer know in advance who, if anyone, will accompany you. What happens at a grievance meeting? A manager who has not previously been involved in the matter will usually conduct the meeting. In smaller organisations this may not be possible, and it may be appropriate to bring in an independent third party such as an HR consultant to chair the meeting. At the meeting, an employee must be allowed to explain their grievance and how they think it can be resolved. It may be helpful to work through your grievance letter, adding any further detail and answering questions the person hearing the meeting wants to ask. Occasionally, it is necessary for the manager to adjourn so that they can follow-up and investigate the matters which have been raised. Even if this is not necessary, the manager is unlikely to give a decision straight away as they will want to take time to consider the matter – this is entirely normal. The outcome of a grievance The manager’s decision on what action will be taken must be communicated to an employee, in writing, without unreasonable delay. Any specific timelines set out in the grievance policy should be followed. If there are no timescales set, then within five working days will usually be reasonable (unless the matter is complex and requires extensive investigation). You employer is obliged to keep you informed about any delay. Where appropriate, such communication will set out what action the employer intends to take to resolve the issue. The communication from the employer should also make it clear that the employee has a right of appeal if they are not satisfied with the decision. Can you appeal the outcome? If you are unhappy with your employer’s decision, you should appeal. If you are partially satisfied with the outcome but take issue with some of it, you can still appeal, but make it very clear what part of the outcome you are challenging, and which bit you are not. It is always best to exhaust the internal process before considering whether legal action might be the appropriate next step in resolving your complaint. You should submit your appeal in writing within the required timescale. Explain why you believe the outcome of the initial appeal was wrong (for example, was certain evidence not taken into account?) and state what redress you are seeking. Where possible, a manager who has not previously been involved with the matter should consider your appeal. A further meeting will be held to allow you to explain your position. Employees have the same right to be accompanied at any appeal hearing as at the first grievance meeting. Your employer must inform you in writing of the outcome of the appeal without unreasonable delay. What to do if you are still not satisfied Sometimes, employees find that despite appealing their grievance outcome they are still not satisfied with the employer’s response. As you are effectively at the end of the process (unless your employer’s internal process allows for another level of appeal), you will need to decide how you want to proceed. This will obviously depend upon the nature of the grievance, its seriousness, whether the matters complained of are ongoing (or historical) and your own personal circumstances and feelings about the matter. Potential options include: Accepting that your grievance has not been upheld and continuing to work Deciding to move on and to start looking for other roles (but continue in employment for now) Raising the matter with your trade union (or another employee representative) Taking advice from an employment solicitor and instructing them to send a letter on your behalf asking the employer to reconsider Bringing an employment tribunal claim based on your complaint By this stage, it may not be easy for you to keep matters in perspective, so getting some impartial advice about your options can be helpful, whether this is from a solicitor or advice service such as Citizens Advice or ACAS. Bringing a tribunal claim is not something to be undertaken lightly, so it is recommended that you always seek professional advice to fully understand what is involved before acting. The nature of the complaint will decide the type of any claim which is brought in the tribunal. Complaints about workplace discrimination, harassment or equal pay can be brought while still employed. If, however, the appropriate claim is constructive (unfair) dismissal you will need to resign i.e. leave your employment. This is a significant step which should not be taken without advice and serious thought first. How can we help you? If you have questions because you are currently considering bringing a workplace grievance or going through the procedure, then talk to our employment law specialists today. We’ll help you figure out the best way forward for you.

Employees (those employed under a contract of employment) enjoy numerous employment rights and protections which have been passed into law by Parliament over many years. However, not all these statutory rights kick in from day one of employment – many only apply once an individual has completed a certain amount of service with their employer (known as qualifying service). Employment rights from your first day Employees are entitled to a variety of different legal rights from their very first day of employment, regardless of industry or profession. These rights can be broken down into several different categories. Pay rights From their first day, all employees have certain legal rights regarding their pay. These are: To receive at least the relevant rate of the national minimum wage , which is dependent on an employee’s age. To receive an itemised payslip showing gross pay, deductions and net pay. Not to have unauthorised deductions made from their pay. To be paid for accrued but untaken statutory annual leave on the termination of employment Paid/ unpaid leave Employees are also legally entitled to receive paid annual leave (28 days for a full-time worker) from the start of their employment. In the first year they can only take annual leave which has accrued at the time they wish to take holiday. In subsequent years this restriction does not apply. They will also be entitled to claim statutory sick pay, providing that they pay national insurance and have been off sick for four days in a row. Maternity and family leave Employees are entitled to take 52 weeks’ maternity leave and an employer must ensure that they return to the same job, even if they were pregnant when they started the job. They also have the right to take paid time off for antenatal appointments. Partners are entitled to take unpaid time off to attend up to two antenatal appointments with their partner. 52 weeks of paid adoption leave is also a day one employment right. All employees are entitled to take unpaid time off to deal with unexpected emergencies involving family members. Right to breaks and reasonable working hours An employer is legally obliged to provide an unpaid 20 minute break after working for six hours, as well as a daily rest break of 11 hours in every 24. Employees are also entitled to a weekly rest break of one day off in every fourteen. Equality and discrimination There are strict equality and discrimination rights applied to all workers, from their first day of employment. These are: Not to be discriminated against, harassed or victimised due to a relevant protected characteristic (i.e. age, disability, gender reassignment, pregnancy and maternity, marital or civil partnership status, race, sex, sexual orientation and religion or belief) To ask for reasonable adjustments to be made to enable you to do your job if you are disabled To receive equal pay to employees of the opposite sex doing the same or a broadly similar job, a job of equal value or a job which has been rated as equivalent If you are employed on a fixed-term contract, to be treated no less favourably than a comparable permanent employee e.g. in relation to pay, benefits and training If you are a part-time worker, not to be treated less favourably than a comparable full-time worker Other day one employment rights Disciplinaries and grievances In the event of a disciplinary or grievance matter, every employee has the right to be accompanied by a colleague or trade union representative at any formal hearing. Whistleblowing All employees are protected against detriment or dismissal due to whistleblowing. Personal data There is also the day one right to have your personal data dealt with in accordance with the Data Protection Act 2018, this includes ensuring that your personal data is fairly and securely processed and not kept for longer than necessary. Trade unions An employee have the right to belong to a trade union and take part in industrial action and not to suffer any detriment or dismissal for a union-related reason from the beginning of their employment. They also have the right to be informed and consulted on any proposed TUPE transfer or collective redundancies. Health and safety All employees, regardless of time served, are entitled to protection under the Health and Safety at Work Act 1974. The general duty is that the employer must take reasonable steps to ensure the health and safety of those at work. Employment rights beyond day one Following your first day of employment, an employee becomes entitled to more employment rights at varying milestones of service. After one month After a month of service, employees are entitled to more rights, several of which address the issue of pay if an employee is forced to stop working. These are the right to: Be paid, if you are suspended on medical grounds Be paid statutory lay off pay if you are laid off or put on short-time working Other rights following being employed for a month are: To be given a written statement of the main terms and conditions of your employment (from April 2020, the employer must provide this on day one) To be given at least a week’s notice of dismissal After 26 weeks Following 26 weeks of service, employees become entitled to several employment rights that are centred around parental needs, with more family-friendly working options becoming available. Your rights after 26 weeks are: To request (but not necessarily be granted) flexible working. To take paternity leave To take shared parental leave (if you are the mother of a child, other criteria apply to fathers/partners) After one year After being employed for one year, employees are entitled to take 18 weeks’ unpaid parental leave in respect of each child. This must be taken before the child’s 18th birthday. Rights only available after two years of employment There are a variety of important employment rights that only become available following two years of service. Unfair dismissal After two years, an employee has the right to bring a claim for ordinary unfair dismissal, protecting them from an employer terminating their contract without valid reason or without following a fair procedure first. However, it is worth noting that the two-year qualifying period does not apply if the dismissal is for certain reasons. This includes health and safety, maternity or family leave issues, whistleblowing or because the employee sought to assert a statutory right. Statutory redundancy payment Where the dismissal is due to redundancy, an employee is entitled to statutory redundancy pay only after two year’ services. The amount is capped (but rises every year) and is calculated based on age, pay and length of service. It is worth noting that an employer may have their own contractual redundancy scheme which applies with different rules to, or may offer to make an ex gratia redundancy payment to those with, less than two years’ service. Written reason for dismissal Following two years of employment, there is the right to request written reasons for dismissal form your employer. However, if the reason was for pregnancy or a family leave related reason, this right applies from the beginning of employment.  Rights before becoming an employee It should also be noted that even before someone becomes an employee, they have certain legal protections as a job applicant. Mainly this encompasses the right not to be discriminated against (due to any protected characteristic) and where the applicant is disabled, an employer must make reasonable adjustments made to the interview/selection process.

There are various ways in which an employer may breach the terms of an employee’s contract of employment. Depending upon the circumstances, this may leave the individual with no choice but to commence legal proceedings. When it comes to breach of contract claims against their employer, an employee has a choice whether to do so by bringing a claim in the employment tribunal or the ordinary courts. We consider the pros, cons and requirements of each type of legal claim. Breach of contract in the employment tribunal The employment tribunal’s power to deal with breach of contract claims is subject to certain restrictions. It is therefore important to be aware of these when assessing whether bringing a claim in the employment tribunal will be possible and/or desirable. What are the conditions for bringing a breach of contract case? There are several conditions to bringing a breach of contract claim in the employment tribunal. Only employees (those working under a contract of employment) and apprentices (those working under a contract of apprenticeship) can bring a claim. Those who are self-employed, workers or agency workers cannot bring a claim. A claim can only be brought against the claimant’s actual employer. Claims cannot be brought against any associated companies or trade unions. Employees cannot bring legal claims for personal injury in the employment tribunal; these must be heard in the ordinary courts. One key issue to consider is that the employee’s employment must have terminated (for whatever reason) in order to bring a claim. Employees who are still employed cannot bring a claim. This will severely limit the usefulness of such claims for many, who do not wish to resign before bringing a claim. The claimant should also note that a claim must be brought within 3 months of the termination of employment (subject to any extension as a result of the early conciliation requirement). Claims can only be brought for sums which were outstanding or arise on the termination of employment e.g. for unpaid wages or payment in lieu. Tribunal case fees There is no longer a fee to pay for a claim made in the tribunal. Generally, each party to a claim in the tribunal only pays their own legal costs, regardless of who wins. How much can I be awarded in compensation? A tribunal can only award compensation of up to a limit of £25,000 for each breach of contract claim. The Acas Code of Practice on disciplinary and grievance procedures applies in the tribunal (the Code). If it appears to the tribunal that the claim concerns a matter to which the Code applies, and the employer has unreasonably failed to comply, any compensation awarded to an employee may be increased by up to 25%. Conversely, this rule also works the other way around. The tribunal may also reduce any award it makes to the employee by no more than 25% if it appears to the tribunal that the employee unreasonably failed to comply with any relevant part of the Code. Can an employer make a counter claim? When an employee has made a breach of contract claim in the tribunal, it is then possible for an employer to make a counterclaim against the employee in respect of an alleged breach. By doing so, employers can avoid the legal fees and costs risk of commencing proceedings in the civil courts against the employee. Should I bring my claim in the employment tribunal or ordinary courts? If losses are likely to exceed £25,000 (i.e. the amount you are looking to recover from your employer is more than this) then the only way to ensure full recovery is by bringing a claim in the ordinary courts. This may very well be the case for higher earners. It is not possible to bring part of the claim in the tribunal and then sue for the balance of any amount over £25,000 in the ordinary courts How does the claim process in an ordinary court? Unlike in the employment tribunal, The Code does not apply to claims in the ordinary courts. This means there will be no possibility of any uplift/reduction to any damages awarded to such claims. The time limit for a breach of contract in the civil courts is generally six years from the date of the breach of contract. This is obviously far longer than for tribunal claims. Unlike in the tribunal, a fee is payable for bringing a claim in the ordinary court (based on the amount being claimed). Further legal fees are payable at various stages of the court proceedings. The losing party in a court claim will usually have to pay the winner’s legal costs so there is significant financial risk of a weak claim in the ordinary courts. Potential breach of contract claims There are many possible ways in which an employer might breach an employee’s contract which causes them financial loss. Examples include: not paying salary due (in part, or full) not paying commission earned not paying pension contributions not paying a bonus in accordance with the rules of the scheme dismissing without notice or payment in lieu of notice when there has not been any gross misconduct by the employee not paying the correct amount of notice lieu of notice withdrawing contractual benefits where there is no right to do so varying other terms and conditions without agreement Deduction from wages in the tribunal claims as an alternative As explained above, an employee can only sue their employer for breach of contract in the employment tribunal once their employment has terminated. If the employee’s claim concerns unpaid wages, but they are still employed and do not wish to resign then they may instead be able to bring a statutory claim for unlawful deduction from wages in the tribunal. There is no legal limit on the amount of unpaid wages an employer can be ordered to pay. In addition, a worker can claim for consequential financial loss suffered as a result of the unlawful deduction such as bank charges. However, claims must be brought within three months of the date of the deduction. The deduction happens on the day on which the worker was paid their wages (or the date the worker expected to be paid). If there has been an on-going series of deductions, a worker has three months from the date of the last of them. Unfair dismissal claims as an alternative Provided that an employee has two years’ service, they may be able to rely on a claim for unfair dismissal in the employment tribunal to defeat the £25,000 cap on breach of contract damages. Where an employer has failed to pay in lieu of notice, an employee may seek to recover this financial loss as part of an unfair dismissal claim. Compensation for such claims is capped at the lesser of 52 weeks’ salary and £86,444.  For further legal rights on how to make a claim against a breach of contract, and which route will best suit your circumstances, do not hesitate to get in touch with our employment law specialists.