Reasons to choose Wilson Browne
There are two parties in a working relationship – the employer and the employee – and each has their own objectives.
The employer requires their employees to carry out certain duties to an acceptable standard and within an appropriate timeframe, thereby ensuring the smooth running of their operations.
Employees, on the other hand, seek to ensure they receive adequate recompense (in money and/or other benefits) for their labour, and that other aspects of the relationship (which may include working conditions, hours of employment, sick pay, annual leave, and pension arrangements) are satisfactory.
These two distinct sets of requirements are usually able to coexist in relative harmony.
There are, however, occasions where one or both parties believe that the other is not behaving appropriately. Employment law seeks to adjudicate in such cases and enable a fair solution to be reached.
We will look below at the general principles surrounding employment law and employee rights in the UK and ways in which employers can avoid problems.
It is important to be aware that employment law is a complex area with all cases being treated on their own merits.
Any organisation with concerns on this issue should obtain expert advice from employment solicitors.
What are the basic employment rights in the UK?
An individual’s employment rights will depend on whether they are classed as a worker or an employee.
Someone may be likely to be considered a worker if they have an informal relationship with the employer – for example, by not having regular fixed hours or an obligation to accept any offers of work from the organisation.
This category may include casual and agency staff as well as some freelance workers and some who are on zero-hour contracts.
An employee will usually have a more formal relationship with the organisation – for example, working fixed, regular hours with an obligation to carry out tasks they are assigned.
Workers have the following employment rights:
- payment in line with the National Minimum Wage
- statutory minimum level of paid holiday
- statutory minimum level of rest breaks
- a maximum working week of 48 hours on average unless they agree to do more
- protection from unlawful discrimination
- protection against unlawful deductions from their wages
- protection should they act as a ‘whistleblower’ by reporting wrongdoing in the workplace
It is possible that workers may also be entitled to statutory sick pay, statutory maternity pay, statutory adoption pay, and statutory paternity pay.
Employees receive all the employment rights enjoyed by workers. In addition, the rights of employees in the UK include:
- statutory sick pay
- statutory maternity/paternity/adoption/parental leave and pay
- minimum notice periods should their employer wish to dismiss them
protection from unfair dismissal
- right to request flexible working
- time off should they need to deal with an emergency
- redundancy pay
However, note that some of these rights require a minimum length of continuous employment before the employee can qualify for them.
What are the grounds for dismissal in the UK?
The ultimate sanction for any employee in a dispute with an employer is to summarily dismiss them from their position. The knowledge that this option is available to an employer may make an individual feel obliged to work in a way or at a time contrary to their wishes.
Before looking in detail at some scenarios in which disagreements may arise, it may be useful to look at the circumstances in which it may be possible for an employee to be dismissed.
1. Capability and qualifications
Inability to perform the role to the required standard.
A basic requirement for any staff member is that they are able to do the job they have been employed to perform.
This applies on both a professional level (e.g. ability to operate machinery or equipment required for the role) and a personal level (e.g. not being able to perform their role due to care commitments).
It is also possible that a person’s ability to do their job will deteriorate over time – for example, due to the introduction of new equipment on an assembly line or the arrival of new faces into their team which results in personality clashes.
A mental or physical illness may make it impossible for an individual to perform their role. This may be because they are not able to work at all, or not able to do so to the required standard.
An employee on a construction site who is suffering from a serious back condition, for example, may find it is not possible to carry out the tasks that their employer requires.
It may emerge that the employee does not have the necessary qualifications or the employee is employed on the understanding that they will obtain certain qualifications and they fail to do so or the employee loses their qualifications during employment (e.g., should someone’s chauffer receive a driving ban, they will clearly not be able to perform their role.)
It may also be potentially fair to dismiss an employee for a reason that relates to the conduct of the employee e.g., disobeying reasonable orders). It may be either a single act of serious misconduct (usually termed gross misconduct – see below) or a series of acts that are less serious.
An employee can be dismissed without notice as a result of gross misconduct, which is behaviour that is so extreme – such as assaulting colleagues or customers or stealing from the employer.
It may be that the organisation no longer requires someone to carry out a particular role due to a programme of cost-cutting or reorganisation. A restaurant that relocates to smaller premises to save money, for example, may find it needs fewer staff, or rather it could cease to exist.
4. Legal restrictions
An employee can be dismissed if they cannot continue to work in the role they hold without the employer or employee contravening the law e.g. continued employment would result in breach of immigration laws.
5. Some other substantial reason
This category could include an individual unreasonably refusing to agree to their terms of employment being altered (such as where a company reorganisation is necessary to enable it to continue trading), or being sent to prison.
What employers cannot do
The categories above show cases where UK law may regard it as fair that an employer terminates the employment of an individual.
This does not mean, however, that the employer has an arbitrary right to immediately dismiss an employee if they feel one of the situations applies (apart from in the case of summary dismissal).
Employers are required to act in a fair and proportionate way and to follow a proper process.
For example, it is important that anyone joining an organisation is provided with a written job description and contract of employment – so that they are aware of exactly what their duties entail and the conditions under which they are expected to carry them out.
By being clear about such matters from the outset, the employer reduces the risk of subsequent misunderstandings which could lead to disputes.
The employer should also have clear disciplinary procedures set out (for example, involving verbal and written warnings) so that the employee is aware that there is a problem and has the opportunity to correct their behaviour.
In situations where an employer has identified an issue, they should also take reasonable steps to resolve the problem without the need for termination of employment.
These could include:
- ensuring an individual has the necessary training to adapt to any new procedures
- looking at practical ways in which any stress that someone is experiencing in their role can be addressed
- exploring whether allowing a staff member to work from home and/or work flexible hours would enable them to combine their role with personal commitments
Can employers change a job description or contract of employment?
We have seen the importance of a written job description and contract of employment in setting out the rights of both employer and employee.
It is clear that any changes to these documents could alter the nature of the relationship between the two parties – and be a potential source of conflict.
The reasons why an employer might seek to make changes include:
- Legal requirements: new legislation may make a change necessary – e.g. by making it compulsory for someone using a particular piece of equipment to have a specific qualification
- Changing nature of the role: e.g. the introduction of new technology or working practices
- Internal reorganisation: e.g. in order to remain competitive and safeguard the company’s future, the employer may seek to move an individual to a new team or location
It may be for any of the above reasons an employer may decide to change terms and conditions of employment, which is something an employer can do but it will need to follow a careful process.
Employers would be required to consult with the individual employees affected (either face-to-face or via a worker representative body or trade union) and seek their co-operation.
Should the move lead to a legal dispute, it is vital that the employer can show that the change was necessary and that they took all reasonable steps to involve the staff member in the decision and make it acceptable to them.
For a more detailed guide on this topic please see Guide To Changing Terms And Conditions of Employment
Can a boss make an employee do something they don’t want to?
Another area that demonstrates the importance of the written job description and contract of employment is over whether an individual has the right to say no to a particular instruction from their employer.
For many employees there are aspects of the job they do not enjoy.
A member of staff at a restaurant may derive great satisfaction from preparing food – but not from serving customers.
Whether or not the employer can insist that they carry out such a task (or risk losing their job) may depend on various factors such as whether it’s within the scope of the employee’s role, whether the request is reasonable, whether refusing the request is a breach of a duty of trust etc., it is therefore recommended that employees obtain expert legal advice if they have any concerns.
Can my boss tell me what to do outside of work?
Employers may have a right to a say in how an individual behaves outside of work in cases where this impacts on an organisation’s operations.
There may be specific examples that are set out in an individual’s contract of employment – for example, a professional footballer may be prohibited from engaging in potentially dangerous hobbies that could lead to physical injuries.
Likewise, a chauffeur may be obliged not to drink excessive amounts of alcohol that could leave them still over the legal limit when they are back at work.
Even if a particular type of behaviour is not specifically mentioned in a contract of employment, the law may consider there is an implied understanding that it is not acceptable.
Someone convicted of theft or assault away from work may be in danger of losing their job if the employer feels it would be damaging to their reputation to retain them.
Can you be forced to work on your day off?
Once again, much will depend on what is mentioned in an individual’s contract of employment and job description.
In cases where working on a day off may be required, it is important that the employer is as precise as possible in terms of frequency, amount of notice, and compensation (monetary or time off) in order to avoid misunderstandings and disputes.
At Wilson Browne, our team of employment law specialists has a wealth of experience in providing advice on the rights of employees in the UK.
When problems arise at an organisation it is often due to uncertainty over what is expected of employees and the lack of an effective way of resolving disputes at any early stage.
Our expert employment solicitors can work with your business to ensure it has robust documentation (including employment contracts and job descriptions) and processes (such as disciplinary and grievance procedures) which can reduce the risk of problems arising.
Where issues do occur, we can help your organisation address them in a timely and effective manner and so avoid disruption and reputational damage.
With offices in Corby, Higham Ferrers, Rushden, Kettering, Leicester, Northampton, and Wellingborough we can offer a free initial consultation at a convenient location or over the phone.