Solicitors Sheffield

SHEFFIELD EMPLOYMENT SOLICITOR FAQS

What’s the significance of the Equality Act 2010 ?

The Equality Act 2010  is intended to protect the rights of individuals who are disabled and prevent discrimination against people who have an association with a disabled person. The Act states that people must not be discriminated against or harassed because they are wrongly perceived to be disabled.

Under the Act, a person is disabled if ‘they have a physical or mental impairment’ and ‘the impairment has a substantial and long-term adverse effect on their ability to perform normal day-to-day activities’.

The most important changes

• The titles of age, disability, race, religion or belief, sex, sexual orientation, gender reassignment, marriage and    civil partnership, and pregnancy and maternity are now to be known as ‘protected characteristics’.
• Seven different types of discrimination
• Direct discrimination:
• Associative discrimination
• Indirect discrimination
• Harassment:
• Harassment by a third part
• Victimisation
• Discrimination by perception
• Prospective employee cannot be asked about their health before offering him work
• No one can be treated unfavourably because of disability

What is the difference between an employee and independent contractor?

The law treats employees and independent contractors differently. It can be difficult to decide the true nature of such relationships and the Tribunal/court will consider the substance and practicalities of the relationship over and above any contract agreed between the parties. In other words, a contract that states there is an independent contractor relationship is not conclusive. In cases of dispute, the Tribunal/court will determine the appropriate status of the relationship by considering a number of factors. Some of these will be considered more important than others. Examples of relevant factors are:

• who provides the tools for the job;
• the level of skill required for the job;
• who controls the work and the work product;
• whether the work is performed on the business premises;
• the duration of the relationship between the parties;
• the ability to delegate or sub-contract the work;
• whether the hired party has discretion over how long and when they work;
• whether any insurance or benefits are provided to the hired party;
• whether expenses are reimbursed;
• whether the parties have a written agreement defining the status of the hired party;
• the method of payment; and
• the tax arrangements

What is the difference between non-competition and  non-solicitation clauses ?

A non-competition clause prevents an employee from competing with the employer after the employment is terminated. This means that when the employee’s employment comes to an end, he or she cannot take a job at a business which is in direct competition with the Employer.

A non-solicitation clause prevents an employee from encouraging colleagues or contractors to leave the employer and join with the leaving employee in a new venture or that employee’s new employers.

Both a non-competition and non-solicitation clause are forms of employment restrictive covenant. There have been many court disputes as to whether such clauses are enforceable, and the position is that each clause is considered by the Tribunal or court on it’s own merits, but the written contract is not conclusive and can be interfered with and/or overturned by the Tribunal or court.

Criteria which are applied include :-

• whether the clause is broader than necessary to protect the Employer;
• whether the clause would cause undue hardship on the Employee (e.g. it would make it difficult for the Employee to find new employment); or
• whether the clause is unreasonable in relation to time or geographic restrictions.

Are claims available based on bullying at work and/or harassment?

Your employer is responsible legally for the actions of staff, sometimes even if the employer was unaware of such actions, . This is known as vicarious liability. An action is also possible against the individual(s) who may have been harassing you.

The employer may also be liable if appropriate action has not been taken once a complaint has been made.

Bullying and harassment can be physical and/or verbal behaviour and can be communicated in a number of ways such as text messages, emails, verbal and physical communication. The following are examples of bullying and/or harassment:

• verbal abuse or comments
• staring, touching  comments or leering in a sexual way
• offensive gestures
• aggressive physical behaviour

Do I qualify for redundancy?

If you have over two years’ continuous employment, the company is closing down a place of work, or ceasing or diminishing the particular work undertaken by you, then you have a right to redundancy payment if made redundant.

I feel I am being treated badly at work, is there anything which I can do?

If you feel so ill-treated that you feel you can no longer work there, you may resign and claim constructive dismissal. You can then sue your employers for unfair dismissal.

Should you feel ill-treated on the grounds of race, religion, sex, sexual orientation, pregnancy or disability, you may also sue your employer for discrimination.

What is an employment contract?

Employment contracts can take both verbal and written forms.  They set out the rights and obligations of the employee and employer and the nature of the employment relationship.  Typically, provision will be made for working hours, wages, benefits, duties and responsibilities, circumstances in which the contract can come to an end etc.  However, regardless of what is written in a contract, it will be subject to certain minimum standards protected by statutory law.  Employers cannot, for example, make workers work more than the maximum working week, pay below the minimum wage etc.

Do I need a written employment contract?

Whilst the terms of employment contract can take a combination of verbal and written forms, employers are obligated to provide employees with a written contract within two months of starting work.

What is unfair dismissal?

There are two types of unfair dismissal – automatic and contested unfair dismissal.

What is automatic unfair dismissal?

A dismissal will automatically be considered unfair where the dismissal is based on:

• Membership of a trade union or involvement in trade union activities
• Employees publicly disclosing information according to the Public Interest Disclosure Act 1998
• Employees taking statutory maternity/paternity leave
• Employees making claims about statutory rights not being upheld i.e. minimum wage rights

What is contested unfair dismissal?

If reasons under automatic unfair dismissal do not apply, then any dismissal based on other reasons can be contested by the employee and the employer is entitled to argue that the dismissal was legitimate. In automatic unfair dismissal, the burden will be on the employer to show that any reason classed as automatically unfair was not a factor in the dismissal.

Examples of contested unfair dismissal include:

• Circumstances where it has become impossible for the employee to carry out their work (known as constructive dismissal – see below)
• Redundancy
• Dismissal without adequate notice
• Where an employee’s hours have been significantly reduced

What is constructive dismissal?

Constructive dismissal covers situations where the conditions of the workplace have been made difficult for the employee by the employer such that the employee can no longer continue working.

Possible situations under constructive dismissal:

• Where an employee is humiliated in front of other staff members or harassed
• Where discipline is excessive
• Where the location of work is changed with very short notice
• Where the nature of the role of terms of employment have been changed without consulting the employee

What is involved in the employment tribunal?

An employee that feels their grievances in the workplace have not been adequately addressed and believe their employer is in breach of employment law is entitled to make an application for a hearing at an employment tribunal.  You will need to make a written application to the Tribunals Service stating the reasons for the application and details regarding your employment.   If your application is accepted, a hearing date will be given.  However, the Tribunals Service will encourage you and your employer to try and mediate the issue using the services of the Advisory, Conciliation and Arbitration Service, although you are not legally obligated to try mediation.  It should also be borne in mind that agreements made through mediation can be legally binding.

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