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An employee resigns on notice from their employment while they are off work on sick leave. The period of contractual notice the employer is required to give is at least one week more than the statutory minimum period of notice required under the section 86(1) of the Employment Rights Act 1996. The employee is not receiving any pay at the point of resignation, having exhausted their right to sick pay. In these circumstances, what pay, if any, is the employee entitled to receive during their notice period, and would the situation be different if the employer was, instead, to exercise a payment in lieu of notice clause?
Q&As
Generally, if the employee has been continuously employed for one month or more, they will have the right to minimum rates of pay during the statutory period of notice, even if they remain unable to work during the notice period because of sickness or injury. If notice of termination is given by the employer, the employer’s liability to the employee is limited to the period of statutory notice to which the employee is
An employee returns to work in her original job after taking maternity leave and, during the additional protected period, resigns from that employment to start a new job with a different employer. If she is then selected for redundancy in her new role within 18 months of her baby being born, does she have enhanced protection against being made redundant from her new employment?
Q&As
It is assumed for the purposes of this Q&A that the employee’s employment did not transfer to a new employer in circumstances where there has been a relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246 (see Practice Note: TUPE—business transfers). For further information about enhanced redundancy protection, see, generally, Practice Note: Enhanced redundancy protection—statutory family leave. In relation to the employee’s initial employment (from which she resigned), the period during which the employee has enhanced statutory protection from redundancy depends on when the employer is informed of her pregnancy. Assuming the circumstances are within scope of the Maternity Leave, Adoption Leave and Shared Parental
An employee was employed by company A who operated an enhanced, purportedly non-contractual, redundancy policy. On a relevant transfer under TUPE 2006, to company B, it was agreed that company A’s enhanced policy would remain in place for one year from the date of that transfer (‘one-year period’). A second relevant transfer under TUPE 2006 (within the one-year period) transferred the employee to company C, which confirmed that pension contributions, medical insurance and ‘any other benefits’ would be maintained. Shortly afterwards, within the one-year period, company C began a redundancy consultation. The employee was then (outside the one-year period) granted voluntary redundancy and their employment was later terminated on that basis. Does the employee have the right to be paid a redundancy payment under the enhanced non-contractual policy, or statutory redundancy pay only?
Q&As
Enhanced redundancy payments It is relatively common for employers, particularly larger employers and those that are unionised, to pay redundancy payments to redundant employees which are in excess of the statutory minimum under the statutory redundancy payments scheme. The employer may have an established written policy which sets
An employee who is not currently registered with Social Work England (SWE) has been dismissed and a referral to the Disclosure and Barring Service (DBS) is being made, due to safeguarding concerns. The employer is concerned that the former employee may try to register with SWE in order to work with vulnerable children in the future, without disclosing the safeguarding concerns relating to them, and without SWE carrying out the relevant DBS checks. If the employer informs SWE voluntarily about the outcome of the disciplinary proceedings against the employee, would this amount to a breach of data protection law?
Q&As
Referral to Disclosure and Barring Service The duty to make a referral to the Disclosure and Barring Service (DBS) is set out in the Safeguarding Vulnerable Groups Act 2006 (SVGA 2006) and explained in the DBS guidance: Making barring referrals to the DBS. Referral to Social Work England According to the Social Work England (SWE) website: UK applicant guidance, when a person applies to join the SWE register (among other things): • they will be asked whether they have ever been subject
An employee who is redundant is offered a suitable alternative role on a trial period, but the trial fails. If they had less than two years’ service at the date the trial period began, but more than two years at the date of termination, are they entitled to a statutory redundancy payment?
Q&As
Where an employee is dismissed by reason of redundancy, the Employment Rights Act 1996 (ERA 1996) provides a mechanism for the employer to offer the employee, and for the employee to accept, new or renewed employment as an alternative to a redundancy payment. In certain circumstances, if this happens and the employee is re-engaged within four weeks, the original dismissal is deemed a ‘fiction’; the employee is considered not to be dismissed and is not entitled to a statutory redundancy payment. For more information, see Practice Notes: Renewal of contract, re-engagement and trial periods, Suitable alternative employment and Unreasonable refusal of alternative employment. Effect of renewal or re-engagement A distinction is made between the situation where: • the original contract is renewed • the employee is re-engaged under a new contract
An employee with over two years’ service working under a contract of apprenticeship in Scotland has their contract of apprenticeship terminated early due to redundancy. There is no clause in the contract allowing for early termination due to redundancy. Are they entitled to a statutory redundancy payment and damages for breach of contract?
Q&As
For information on apprenticeships in Scotland generally, see Practice Note: Apprenticeships in Scotland. The legal framework for apprenticeships in Scotland is different from that in England, which has a statutory scheme. For more information, see: • the section of Practice Note: Apprenticeships in Scotland entitled 'Legal framework for common law apprenticeships • Practice Note: Apprenticeships, which deals with the position in England An employee with over two years’ service
An employee works as a carer three days a week. They do not live in, and are in the normal course responsible for arranging and covering the cost of their own meals while at work. If the employee accompanies the employer and their family abroad to care for them while on holiday, is the employer obliged to cover the cost of the carer’s meals during the holiday, eg if they are required to accompany the employer to a restaurant and has to pay for her own meals, if the employment contract does not cover this situation? If the employer refuses to do so, would the cost the carer incurs to pay for food amount to a deduction which serves to reduce their pay for National Minimum Wage calculation purposes?
Q&As
Is the employer required to pay for the carer’s food while they are abroad? There is no statutory provision dealing with the question of whether, if an employee is asked (or required) to carry out their duties abroad for a period, the employer is required to pay the employee’s expenses during that
An employee, while in a personal relationship with the owner of the company that employs them, pays out a large sum of their own money on the refurbishment of a shop without asking that the money be repaid. The relationship ends, and the employee decides they want their money back. Can the employee's outlay be regarded as expenses for which they are entitled to be reimbursed?
Q&As
The question of what an employee is entitled to be paid (or repaid) will be governed by the law of contract. A contract can be made up of all or any of: • express terms • implied terms • imposed terms • incorporated terms For further information, see Practice Note: Types of contractual term
An employee’s employment with their original employer terminates and as part of the termination arrangements the employee is offered employment with another, associated, business in the group. In circumstances where the employee’s continuity of employment is preserved and there is no Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246 (TUPE) situation, do any of the claims that the employee has against the original employer for breach of contract and unlawful deduction from wages transfer to the new employer?
Q&As
Contractual and statutory claims arising from an employee’s employment must be brought against the employer liable for the unlawful conduct giving rise to those claims. In situations where there has been a relevant transfer, the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246 apply such that all the transferor's rights, powers, duties and liabilities under or in connection with employment contracts of transferring employees transfer to the transferee. For further information, see: • TUPE and asset purchases—overview • Practice Note: TUPE—transfer
An employer dismisses an employee for gross misconduct, then invites the employee to resign on the same day, which the employee does. Is the employer bound to pay the employee in lieu of the employee’s notice period?
Q&As
In this scenario, it would appear that: • the employer dismissed the employee • the employer then invited the employee to resign that same day, ie, without notice (presumably so that they do not have a dismissal on their record) • the employee accepted the employer’s invitation, and resigned that
An employer dismisses employees on notice for redundancy on account of the anticipated closure of the business. Subsequently, during the notice period, a business sale giving rise to a TUPE transfer is agreed, and is effected at the point the notice period expires. Can it be argued that the dismissals are automatically unfair because the transfer is the sole or principal reason for the dismissals, even though no TUPE transfer was envisaged at the point notices to terminate were issued?
Q&As
Where an employee of the transferor or the transferee is dismissed, whether before or after a relevant transfer, the employee is treated as automatically unfairly dismissed for the purposes of Part X of the Employment Rights Act 1996 (ERA 1996) if the sole or principal reason for the dismissal is 'the transfer' (the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006) SI 2006/246, reg 7(1)). Whether a dismissal is by reason of the transfer is a question of fact for the tribunal to determine in the light of all the circumstances. If the employer can show that the dismissal
An employer enters into a collective redundancy consultation, at the end of which a number of employees are selected for redundancy. Those employees are given notice of termination by reason of redundancy, but, before the termination date, a change in circumstances means that the employer is able to push back the dismissals and keep those employees in employment for a further period. It accordingly extends the notice periods of those employees beyond their contractual notice entitlement, so that their dismissals will take effect in five months’ time. Is the employer required to start the collective consultation process afresh at this point, or would the original consultation process be sufficient?
Q&As
In considering this question, it will be useful to consider: • what is the trigger for the collective redundancy consultation obligation, and • how long a collective consultation remains ‘effective’ The relevant legislation, section 188(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992) reads: ‘…(1) Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or