From handling grievances to dealing with harassment, we will show you some of the traps employers can fall into and some simple ways to help you avoid them. This presentation is a must for newcomers to the HR profession and experienced HR practitioners alike. We will deal with the 10 issues we see coming up, time and time again.

1. Top 10 Employment Law Tips
Rupert Scrase & Martin Augustus
Scrase Employment Solicitors

2. Scrase Employment Solicitors
Training from experience
In house company training
Practical straightforward advice
Employment Law Advice through
fixed rate for projects, eg. updating handbooks
hourly rate, or
Employment Law Advice Agreement (ELAA)

3. ELAA
• Key benefits of annual ELAA are:
Employment law advice on phone, email or in person
Preparation and representation in Employment
Tribunal
Drafting of settlement agreements
Checking of employment related documentation

4. Number 10 – Understanding Notice
• The Employment Rights Act sets out the minimum
notice that an employee must receive when their
employment is terminated
• Up to a maximum of 12 weeks’ notice after 12 years
• The statutory minimum can be increased by the
contract of employment (but not decreased)
• If an employee is dismissed while off sick not
receiving pay, they are entitled to be paid during
notice (unless their contractual notice is at least one
week more than their statutory entitlement)

5. Number 10 – Understanding Notice
• A contract of employment may or may not contain a
payment in lieu of notice (PILON) clause
• If there is a PILON clause, the PILON must be taxed
• No PILON clause = no legal entitlement to make a
payment in lieu of notice. Technically if you pay
PILON without a PILON clause you are in breach of
contract and are making a damages payment
• NB. Breach of contract (i.e. no PILON clause) may
release an employee from post-termination
restrictions

6. Number 10 – Understanding Notice
• The EDT will always be the last day on which the
employee worked, even if they receive PILON
• Unusually, statutory redundancy payments are
calculated using the date employment would have
ended if a period of statutory notice had been
worked
• (NB. Although there may be no requirement to give
notice to end a fixed term contract, it is a ‘dismissal’
at law. You must follow a reasonable procedure if the
employee has more than 2 years’ service)

7. Number 9 - Relocation
• Unless it is permitted by the terms of the
employment contract, employers cannot require
employees to change location
• If an employer no longer requires work to be carried
out in a particular location then employees will be
redundant unless there is an express relocation
clause in the contract. This because the statutory
definition of redundancy focuses on the place where
the employee is employed

8. Number 9 - Relocation
• Even where an employment contract contains a
relocation clause, there remains an obligation on the
employer to act reasonably:
– Provide the employee with plenty of notice
– Provide the employee with relocation assistance
• NB. If you are going through a redundancy process, it
is good practice to have 3 individual consultation
meetings over 2 weeks. There are also different
obligations for collective consultation (20 +
employees)

9. Number 8 – Handling Grievances
• “Grievances are concerns, problems or complaints
that employees raise with their employers.” (ACAS
Code of Practice on Disciplinary and Grievance
procedures)
• Often grievances can be dealt with informally but if it
is made in writing then the employer must seriously
consider following grievance procedure
• An ET can adjust compensation by up to 25% either
way if either an employer or employee unreasonably
fails to comply with the ACAS code

10. Number 8 – Handling Grievances
• Send a letter inviting the employee to a meeting with
the right to be accompanied
• Hold a meeting with the employee to discuss the
grievance
• Decide on the action to take (normally after
investigation following meeting) and communicate to
the employee
• Appeal to an impartial person, not previously
involved in the matter

11. Number 8 – Handling Grievances
• What if grievances are raised by 2 or more employees by a
representative of a trade union?
• What if an employee raises a potentially serious matter (such
as bullying or harassment) but asks that it is not taken
further?
• What if an employee raises a grievance while a disciplinary
procedure is ongoing?
• Can a resignation letter be a grievance?
• What if a former employer raises a grievance after their
employment has ended?

12. Number 7 – Whistleblowing
• The law protects whistleblowers if an employee
dismisses them or subjects them to a detriment
• No 2 year qualifying period and no limit on
compensation
• There is no longer a ‘good faith’ requirement
• A disclosure does not have to state that “I am making
a whistleblowing disclosure…..”
• A disclosure could be made orally or informally in
writing such as an email or text

13. Number 7 – Whistleblowing
• Although the law does not specifically require it, it is
good practice for an employer to have a
whistleblowing policy
• Bribery Act 2010 states is a criminal offence if an
organisation fails to prevent bribery. A defence is if
had in place ‘adequate measures’ which could
included an effective whistleblowing policy that
encourages the reporting of bribery
• Confidentiality clauses to try to prevent protected
disclosures are unenforceable

14. Number 6 – Handling Employee Data
• Is employee data safe?
– Is employee data held on laptops, tablets, data-sticks or
other removable media?
• If yes, is the data encrypted?
• Encryption is more than merely a password protecting
access to a laptop, tablet or an individual document
– Are passwords changed regularly?
– Have staff been trained on how to identify cyber
crime such as “phishing” emails?

15. Number 6 – Handling Employee Data
• Does your organisation have in place a procedure to
deal with subject access requests under the data
protection act?
• Are employees informed how the data you collect
will be used?
– In fair processing notice or the employee’s contract of
employment?
– Monitoring of email and telephone use
– Sensitive personal data

16. Number 6 – Handling Employee Data
• Where is employee data actually held?
– Cloud storage systems
• Do you transfer any personal data to the US? In
October 2015, the EU deemed that the ‘safe
harbour’ arrangements were no longer valid
although a new agreement called EU- US Privacy
Shield is likely to be put in place
– If relying on existing contractual clauses, data can still be
transferred to the US but the UK sender will have to
evaluate whether the US recipient will properly safeguard
the data

17. Number 6 – Handling Employee Data
• Social media
– Does your organisation monitor employee’s social media
posts?
– Are social media posts considered as part of the
recruitment process?
– Does your organisation’s social media policy cover
employee’s private as well as work posts?
– Who owns social media accounts?

18. Number 5 – Automatically Unfair Dismissal
• If an employee brings a claim for “ordinary” unfair
dismissal then an ET will apply a test of
reasonableness
• This test does not apply if the dismissal is for one of
the “automatically” unfair reasons
• (in almost all cases) the 2 year qualifying rule does
not apply

19. Number 5 – Automatically Unfair Dismissal
• In some cases the upper limit on the compensatory
payment (from 6.4.16 the lower of £78,962 or 52
weeks’ pay) does not apply.
– Dismissal for a health and safety reason
– Dismissal for making a protected disclosure
(whistleblowing)
– Selection for redundancy for either of the above

20. Number 5 – Automatically Unfair Dismissal
Pregnancy or
childbirth or with
SML, SPL, SAL, ShPL
etc
Health and safety Shop and betting
workers refusing to
work on Sundays
Working Time
Regulations
Function as an
occupational
pension trustee
Function as an
employee rep
(TUPE and
Redundancy)
Making a protected
disclosure
(whistleblowing)
Asserting a
statutory right
Asserting rights
relating to Flexible
working
Asserting rights
relating to National
Minimum Wage
Asserting rights
under Working Tax
Credits
Blacklisting

21. Number 5 – Automatically Unfair Dismissal
Connected to time
off for study or
training
Jury service Duties as an
employee rep in
relation to
Information and
Consultation
Status as a part-
time worker
Status as a fixed-
term employee
In relation to union
recognition
Taking protected
industrial action
Pension auto-
enrolment
Redundancy on the
grounds of any of
the above

22. Number 4 – Ill Health Dismissals
• Capability is potentially a fair reason for dismissal
• However, dismissal will be unfair if an employer does
not follow a proper procedure which may include:
– Considering prospect of employee returning to work
– The effect of the employee’s absence on other employees
– Considering alternative employment
– Whether contractual sick pay has been exhausted
(employer will normally have to wait)

23. Number 4 – Ill Health Dismissals
• Disability discrimination
– Includes failure to make a reasonable adjustment
• Obtain an up-to-date medical report (a report that is
more than a few months old is likely to be out of
date)
• Consider whether there are any reasonable
adjustments that could be made that would allow
the employee to return to work
• Contact Access to Work

24. Number 4 – Ill Health Dismissals
• Consult the employee and again consider any
reasonable adjustments that could be made
• Give the employee plenty of warning that they may
be dismissed if no alternative can be found
• NB. Take specific employment law advice if
employees have the benefit of PHI (Permanent
Health Insurance). This is because the courts may
imply a term preventing dismissal if the dismissal
would deprive the employee of benefits they would
otherwise be entitled to

25. Number 3 – Dealing With Harassment
• Does your organisation have a procedure for dealing
with harassment at work?
• Are there provisions that deal with the possibility
that the harasser is the line manager?
• Is the policy separate from the grievance procedure?

26. Number 3 – Dealing With Harassment
• Do employees receive training aimed at preventing
harassment at work as part of their induction and at
regular intervals
• Employers can be held liable for acts of their
employees, even if they are unaware of the act or do
not condone the act
• Does your organisation carry out equality
monitoring?
– Are statistics available regarding the background
population for the area in which your organisation is
located?

27. Number 3 – Dealing With Harassment
• An employer can defend a claim that it is liable for
acts of harassment, committed by its employees if it
can show that;
– It took all reasonable steps to prevent the
employee from
• Doing that thing;
• Doing anything of that description

28. Number 2 – Constructive Dismissal
• An employee terminates the contract (with or
without notice) in circumstances in which he is
entitled to terminate it without notice by reason of
the employer's conduct
• Resignation must be in response to a ‘repudiatory
breach of contract’. Employee may resign because of
an anticipatory breach
• Once it has been committed, a repudiatory breach
cannot be cured (it may be possible to cure an
anticipatory breach)

29. Number 2 – Constructive Dismissal
• Resignation could be in response to a single act or it
could be the ‘final straw’ in a series of action, each of
which taken alone may be minor
• Examples:
– Changing salary or other terms and conditions
– Changing job title (director, executive, manager)
– Excessive workload
– Failing to adequately deal with a grievance or bungling a
disciplinary matter
– Intolerable working environment

30. Number 2 – Constructive Dismissal
• Employee must resign in response to the breach of
contract
• Must resign quickly (although working a notice
period would usually not damage and employee’s
claim)
• In effect, a duty on the employer to treat employees
nicely

31. Number 1 – Everything Else
• Remember to always consider indirect sex
discrimination if dealing with a flexible working
request from a woman with childcare responsibilities
• Write every letter as though an Employment Judge is
looking over your shoulder. Try to write concisely
using plain language; avoid using jargon and EAALO
(explain acronyms at least once)
• Use page numbers and number paragraphs (it makes
it easier to find important detail if matters end up in
tribunal)

32. Number 1 – Everything Else
• Remember that every email that you write, every
text message that you send and every instant
message is retained and can be disclosable in
tribunal
• We tend to treat email as an informal medium, like a
conversation but it is no different to sending a letter
• Good practice to draft important or sensitive emails
first and put the recipients in last

33. Number 1 – Everything Else
• HR’s role in disciplinary proceedings (Ramphal v DfT)
– An investigation into alleged expenses misuse by a
manager inexperienced in disciplinary matters
– The manager’s initial view was partly critical but also found
that abuse had not been deliberate – recommended a final
warning
– 6 months of communication between HR and the
investigator

34. Number 1 – Everything Else
• Favourable comments were removed and replaced
with critical ones – overall view of culpability became
one of gross negligence and recommended sanction
became gross misconduct

35. Number 1 – Everything Else
• HR should limit advice to questions of law, procedure
and process
• Avoid straying into the area of culpability
• HR should not advise on the appropriate sanction,
outside of addressing issues of consistency
• Significant HR influence could compromise fairness

36. Thank you
We run regular employment law updates.
The next update, with a masterclass on employment
contracts, will take place on 28 June 2016.
www.scraselaw.com
Twitter - @scraselaw
Scrase Law Limited t/a Scrase Employment Solicitors. Whilst every effort has been
made to ensure the accuracy of these notes, the information contained within
them is not comprehensive and does not constitute ‘advice’. You should not take
action without first seeking professional advice.