We have assumed that the statutory consultation obligations do not apply. Meaning of lay-off In common industrial parlance, a 'lay-off' occurs when the employer temporarily shuts down its operation because it cannot find any or enough work for its employees. For further information, see the section of Practice Note: Redundancy payments for lay-offs and short-time entitled Lay-off generally. For the purposes of the Employment Rights Act 1996 (ERA 1996), ‘lay-off’ is given a restricted meaning. It means a situation in which: • the employee is employed under a contract on terms and conditions such that the employee’s remuneration under the contract depends on the employee being provided by the employer with work of the kind which the employee is employed

You may wish to consider: • the mechanism for the employer to offer, and the employee to accept, new or renewed employment as an alternative to a redundancy payment set out in sections 138–141 of the Employment Rights Act 1996 (ERA 1996) • the provisions relating to reinstatement in consequence of action taken in relation to dismissal For information on the former, see Practice Note: Renewal of contract, re-engagement and trial periods. In relation to the latter, under ERA 1996, s 14(2), the continuity of a period of employment is broken where: • a redundancy payment has previously been paid to the employee (whether in respect of dismissal or in respect of lay-off or short-time), and • the contract of employment under which the employee was

Termination of employment by reason of redundancy Redundancy is a potentially fair reason for dismissal (section 98(2)(c) of the Employment Rights Act 1996 (ERA 1996)). However, as with other potentially fair reasons, the fairness of a redundancy dismissal is to be determined by the test of whether an employer's decision to dismiss for that reason falls within the band of reasonable responses of a reasonable employer in those circumstances and in that line of business. Failure to follow a fair procedure when dismissing an employee for redundancy will normally render the dismissal unfair (ERA 1996, s 98(4)). For further information, generally, see Practice Note: Reason for dismissal—redundancy. An employee is dismissed by reason of redundancy if the circumstances of their dismissal align with one of the situations described in the statutory definition of redundancy provided for in ERA 1996, s 139. Even

For information generally: • on continuity of employment, see Practice Note: Continuity of employment • on employee status, see Practice Note: Employee status For statutory rights under the Employment Rights Act 1996 (ERA 1996), there is a set way of calculating continuity which overrides any agreement between employer and employee. It depends on: • when the continuous period starts • when the continuous period ends • whether anything happens to break continuity between the start and the end • whether any period of employment with another employer counts The period of continuous employment starts with the day on which the employee starts work. For further information, see Practice Note: Continuity of employment—When the continuous period starts. As to when the period of continuous employment ends, the general principle is that a period of continuous employment ends upon whatever is the ‘relevant date’ for determining the employee’s length of continuous

For information: • on the right to a statutory redundancy payment under section 135 of the Employment Rights Act 1996 (ERA 1996), see Practice Note: Entitlement to statutory redundancy payment • on how to calculate a week’s pay for these purposes, see Practice Note: Calculating a week's pay The statutory redundancy payment is calculated by: • determining the employee's number of complete years of continuous employment ending with the 'relevant date', and • allowing the appropriate number of weeks for each year • multiplying that total number of allowed weeks by the current figure for a week's pay, calculated in the usual way, subject to the statutory cap, which is £544 per week from 6 April 2021 The relevant date will be the date upon which employment is effectively terminated, except: • where the employee dies before

Details of the Coronavirus Job Retention Scheme (CJRS) are set out in: • the HMRC guidance for employers: Check if you can claim for your employees' wages through the Coronavirus Job Retention Scheme • the HMRC guidance for employees: Check if your employer can use the Coronavirus Job Retention Scheme, and • The Coronavirus Act 2020 Functions of Her Majesty’s Revenue and Customs (Coronavirus Job Retention Scheme) Direction (Treasury Direction) On the face of it, there is nothing to say that an employee who has been furloughed under the CJRS cannot be made redundant. When

The right under the Working Time Regulations 1998, SI 1998/1833 (WTR 1998) is to a total of 5.6 weeks' annual leave each 'leave year', made up of: • a 'basic entitlement' to a minimum of four weeks' annual leave (20 days for a regular full-time worker) each leave year, implementing the right to annual leave under article 7 of the Working Time Directive (WTD) • an 'additional entitlement' to 1.6 weeks' annual leave (eight days for a regular full-time worker) each leave year, which is a right under domestic legislation only Understanding this distinction is important because: • case law from the European Court of Justice (subsequently applied in our domestic courts and tribunals) concerns the operation of the WTD only, and as such is only relevant to the basic entitlement to four weeks' paid leave;

The first question is whether the annual leave in question forms part of the employee’s statutory or contractual paid holiday entitlement. For information on contractual holiday pay generally, see Practice Note: Paid holiday—contractual issues. In relation to statutory paid holiday, workers in the UK have a statutory entitlement to 5.6 weeks of paid annual leave under the Working Time Regulations 1998 (WTR 1998), SI 1998/1833, comprising two elements: • a basic entitlement to four weeks’ annual leave (sometimes referred to as ‘Euro leave’) under WTR 1998, SI 1998/1833, reg 13, and • an additional entitlement to 1.6 weeks’ annual leave under WTR 1998, SI 1998/1833, reg 13A For each week of statutory holiday, a worker is entitled to be paid at the rate of ‘a week’s pay’, calculated in accordance with sections 221 to 224 of the Employment Rights Act 1996 (ERA 1996), as modified by

If the employee has been continuously employed for one month or more (which is certain to be the case when dealing with long-term sickness absence), he will have the right to minimum rates of pay during the statutory period of notice, even if he remains 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 entitled. If notice of termination is given by the employee, the employer’s liability to the employee is limited to the period

The combined effect of the implied duty of fidelity, any fiduciary duties owed by the employee and express restrictions on competition (such as garden leave clauses) and on the use of confidential information during employment contained in the contract of employment can protect the employer against competition while the employee is employed. Post-termination restrictions (also known as restrictive covenants) can provide effective protection to an employer against competition by a former employee. However, the protection that such provisions afford will depend on the extent to which the relevant restrictions are judged by the court to be enforceable. Usually, the enforceability of the relevant restrictions will be judged by a court at an interim hearing of an application by the employer for an interim injunction to enforce the restriction concerned. This will involve an assessment of issues such

Employers and employees are obliged to comply with the principles of fairness set out in the Acas Code of Practice on Disciplinary and Grievance Procedures. The foreword to this Code of Practice additionally encourages employers and employees to seek to resolve disciplinary and grievance issues in the workplace, before resorting to the tribunals. Because this encouragement is found in the foreword of the Code of Practice rather than in its body, it is not a statutory requirement. Acas has also produced a guide to the Acas Code of Practice on Disciplinary and Grievance Procedures. This guidance has no statutory authority, but in the event of uncertainty regarding the Code of Practice itself, may be referred to by tribunals. For further information, see Practice Notes: • Acas disciplinary and grievance code—application • Acas disciplinary

Working time Working time is defined for the purposes of the Working Time Regulations 1998 (WTR 1998), SI 1998/1833 as: • any period during which the worker is working, at their employer's disposal and carrying out their activity or duties • any period during which the worker is receiving relevant training, and • any additional period which is to be treated as working time for the purpose of WTR 1998 under a relevant agreement (ie a workforce agreement, a contractually binding part of a collective agreement or any other legally enforceable contract in writing between worker and employer) All three elements under the first bullet point above must be satisfied in order for the period to constitute working time, ie the employee must be: • working and • at their employer’s disposal, and • carrying