Employment Law for Employees

• Read cautiously any clauses referring to restrictive covenants which may affect your freedom to move to a competitor and take your current customers/clients with you. You may also be forbidden from working at a new business for a specific duration immediately after leaving your current employment.
• Be careful about the terms and conditions associated with “golden handshakes” and “golden handcuffs” or LTIs (long-term incentives). These may not allow you the liberty to walk-away from your current role without some detriment to you.
• If your role is a creative one – make sure you are clear about IPR (Intellectual Property Rights) in anything you have already created. You may use these in your new employment – who will own the IPR, will they pay you for the IPR?  Check who owns the IPR in anything you create in the course of your employment.
• Check salary, bonus and commission terms – are they clear, do they make sense? Is this what you agreed?
• What about your job spec – is that what you expected?
• Check notice period – what employer needs to give you, and what you need to give them.
• Is start date do-able? Will you have left your current role by that time?  Did you want a couple of days off before starting at the new place?
• What about the benefits package – are you happy?
• Are you clear about the employer’s social media policies and activity?
• What about promotion and prospects career-wise.

The first thing to do is try and sort it out informally with your supervisor/line manager.  If the problem involves them, and you do not feel you can talk to them about it, then approach their supervisor/line manager.  If that does not work, raise a formal grievance – do this in writing and send it either to Human Resources or one of the managers in the company (if your employer does not have dedicated HR). See guidance on preparing a formal grievance.

We will advise you on the merits of your claim should you wish to consider heading to the tribunal, and we will explain this process starting with lodging an ACAS Early Conciliation application online.  We will guide you through the ACAS exercise, and the negotiations to hopefully settle the matter.  If the complaint has not ended and an ACAS certificate is issued, we will work with you to make sure that your tribunal claim is filed on time – there are strict limitation periods to abide by, and if you miss these deadlines, you are blocked from seeking redress from the tribunal.  All the while, we will work to find a resolution with the other side before reaching full trial because we know that litigation is costly and hugely stressful.

Your grievance should be as detailed as possible to allow the company to investigate it urgently and to take the matter seriously. Make sure you title it: Grievance.  It is not enough to say “my manager is bullying me”. Give dates, times, venue or location to help them look into your complaint thoroughly.  Give details of what was said and by who, and when, or what was done.  Provide the name of any witness who was present.  Explain how the situation has affected you. Then set out what you think might be an acceptable solution.

The subject of wages and pay can get very complicated. There are some regulations governing wages and pay such as National Minimum Wage, Statutory Maternity Pay, and Statutory Sick Pay.

If you have any concerns about your wages, first speak with Payroll and ask them to help you understand your concern. They should be able to explain how your pay has been calculated. If you are still unsure that your pay is correct, we are here to help.

Employers should follow a fair procedure and have a fair reason for dismissing you. Not everyone can bring a claim for unfair dismissal. Generally speaking, employees must have more than 2 years’ continuous service, but there are a number of exceptions one being that you were dismissed specifically because of your protected characteristic (these are race, religion or religious belief, gender, age, disability, sexual orientation, or gender reassignment), and a second being that you think you were dismissed because you “whistle-blew” (protected disclosure).  For these, you do not need 2 years’ service.

If you feel you have been unfairly dismissed, you should immediately submit an appeal about this to the company.

Understand that time is of the essence if you want to start a claim for unfair dismissal at the tribunal – an ACAS Early Conciliation application must be lodged within the limitation period of “3 months less a day” from your termination date.  After this, you enter a period to attempt conciliation – the ACAS conciliator assigned to your case will help.  The third stage is filing an Employment Tribunal claim – and there is stringent time limits here also.

Whether you have a claim will depend on your employment status, why and how you were dismissed and how long you had been employed. The important thing to remember is that there is a seriously short window of time to bring an employment tribunal claim – “3 months less a day” from your date of dismissal or date the circumstance you are complaining about, so it is important that you take advice quickly.

ACAS are the Advisory, Conciliation and Arbitration Service. They provide guidance on employment law but they cannot represent you. If you intend to pursue an employment tribunal claim, they will have to be notified first by an ACAS Early Conciliation application.  They will try and help you and your employer reach a settlement before the matter heads to the tribunal.

In employment law discrimination means that you are being treated differently because of a specific protected characteristic such as your sex, race, religion or religious belief, disability, sexual orientation, gender reassignment or age for example.

If you suffer a disability which affects your ability to work, the employer has an obligation to make reasonable adjustments for you.  This is a complicated subject with legal definitions for “disability” and “reasonable adjustments”, so if you believe that your employer has not accommodated your disability, you should take action: raise it via a grievance.  Ask the employer to refer you to an Occupational Health (“OH”) specialist who will prepare a report which will detail some recommendations to help you in the workplace.  The Employer should consider these recommendations, but note that they are only obliged to adopt them if it is reasonable for them to do so.  A note for women going through the menopause – this may be deemed a disability, and you may be entitled to expect your employer to accommodate you in some respects if these requests are reasonable taking into account the size of the business, the employer’s access to resources, and the requests.

If you feel you are being discriminated, you are able to get expert advice from Waldrons.  We will support you by giving you practical, pragmatic guidance and we will help you address your concerns with your employer.

Restrictive covenants are complex.  Essentially, they are a legal tool to prevent you from doing something.  Often their aim is to prevent you from competing with your employer after your employment with your current employer ends. This may include a restriction on your working within a certain radius of your current employer or a clause preventing you from dealing with your current employer’s customers or business contacts or simply stopping you from working with a competitor immediately after you leave your current employer (so you would need a break of a few months before starting at the competitor’s employment).

If you breach a restrictive covenant, your employer may apply for enforcement. That employer will have to show that the restrictive covenant was in place primarily to protect its legitimate commercial interests and that it was reasonable with regard to duration and geographical area.

Defending a breach of restrictive covenant can be costly and time consuming. It may also result in an injunction being imposed on you to stop you working at your new employer’s workplace.  Additionally, a claim may be filed for damages against you and your new employer by your ex-employer, thereby dragging your new employer into this situation.

If you are considering signing a contract that includes a restrictive covenant, you may wish to seek our specialist legal advice – we are here to help.  Note also that if you receive notice from your ex-employer that you have breached a restrictive covenant, legal advice at an early stage is essential.

A claim for constructive unfair dismissal would need to be received by the Employment Tribunal within “three months less a day” from the date your employment ended.  Given the narrow time limits, you will need to decide whether you want to pursue a claim for constructive unfair dismissal or not, fairly swiftly.

You should consider seeking advice from an employment solicitor urgently.  We are here to help.