Generally, the employee's claim for wrongful dismissal (breach of contract) is for unliquidated damages, to put the employee in the position they would have been in if their contract had been properly performed (ie if they had been given due notice of termination or if the employment had continued for the full fixed term), subject to the employee's duty to take reasonable steps to mitigate their loss and to give credit for any sums that they earn in mitigation. Where a fixed-term contract does not contain an express term allowing for termination on notice by either or both parties before expiry of the contract's term: • under the common law, the contract will not be terminable prior to the end of the term by notice given

If a redundancy situation arises during the employee's maternity leave, such that it is not practicable by reason of redundancy for her employer to continue to employ her under her existing contract of employment, the employer must offer the employee any suitable available vacancy that exists with the employer, the employer's successor, and/or with any associated employer. For further information on the definition of redundancy for the purposes of entitlement to a statutory redundancy payment and entitlement to claim unfair dismissal, see our Practice Note: Definition of redundancy—Redundancy payment entitlement, and fair reason for dismissal. The offer of suitable available

It is likely that consideration will need to be given, in these circumstances, to the employer’s duty to make reasonable adjustments, and the possibility of a claim for discrimination arising from a disability. In relation to the duty to make reasonable adjustments, where a provision, criterion or practice (PCP) applied by the employer places a person who has a disability (as defined by section 6 of the Equality Act 2010 (EqA 2010)) at a substantial disadvantage compared with persons who are not disabled, then the employer is under a duty to take such steps as it is reasonable to have to take to avoid the disadvantage. A failure to comply with the duty to

Where an employee has taken a career break, the respective rights and obligations of the parties in relation to the terms on which such break is taken, and the terms on which the employee will return to work, will generally depend on what was agreed. See, for example, Precedents: • Policy—career breaks (contract terminates) • Policy—sabbaticals (contract continues) Key issues for consideration include: • the status of the contract of employment during the break • whether continuity of employment is preserved during the break, or broken by the break • the statutory or contractual rights the employee may have during the break • the basis on which the employee is to

An employer may wish to question the validity of a fit note for the purposes of determining: • the employee’s right to statutory sick pay (SSP) or contractual sick pay • whether the employee’s sickness absence is genuine Right to SSP Under sections 151–156 of the Social Security Contributions and Benefits Act 1992 (SSCBA 1992), the essential qualification requirements for SSP are that an employee must: • be an employee as defined and not fall within one of the excluded categories • be too ill to undertake any work under their contract of employment on any day for which they claim SSP, or be deemed to be so • have at least four consecutive days' sick absence (including Sundays and Bank holidays) during which they are too ill to work; this is referred to

Where an employee receives more than her accrued holiday entitlement because she takes all her statutory annual leave before going on maternity leave and then resigns or is dismissed before the end of the holiday year, any overpayment of holiday pay may be recovered, but only if there is a relevant agreement specifying that, where she leaves employment having taken

Where an employee has been dismissed by reason of redundancy, section 138 of 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. Where the employee is offered their old job back or is offered another job (with the same employer or an associated employer), and they restart employment within four weeks of the previous one ending, they are considered not to have been dismissed and are not entitled to a redundancy payment. For information on this scheme generally, see Practice Note: Renewal of contract, re-engagement and trial periods. Where the employee is not offered their old job back on identical

As to continuity of employment where an employee becomes employed by a new employer who is an associated employer, see Practice Note: Continuity of employment—Change of employer. When dealing with a discretionary or non-contractual bonus, it is necessary to consider: • to which aspects of the bonus the discretion properly applies • constraints on the employer's exercise of discretion (which apply as a result of case law) • the

Determining whether or not a worker is being paid the national minimum wage (NMW) involves, in essence, working out an hourly rate of pay by dividing payments received by hours worked in a pay reference period (the National Minimum Wage Regulations 2015 (NMW Regs 2015), SI 2015/621, reg 7). Workers do not have to receive the NMW for each hour worked but must receive it on average over the 'pay reference period'. The statutory calculation involves: • adding together actual payments referable to the pay reference period • adding back any deductions that are not treated as reductions for NMW purposes

For information on service occupancy and service tenancy generally, see Practice Note: Service occupancy or tenancy?. The Equality Act 2010 (EqA 2010) provides protection against discrimination and other prohibited conduct which relates to certain listed characteristics which people may possess. Some protections relate specifically to only one of those characteristics. Others provide the same protection in relation to all the characteristics, which are collectively referred to as 'the protected characteristics'. Disability is one of these protected characteristics, the others being: • age • gender reassignment • marriage and civil partnership • pregnancy and maternity • race • religion or belief • sex • sexual orientation Disability is any physical or mental impairment which has a substantial and long-term adverse

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246 provides additional protection to an employee where a dismissal occurs in a transfer situation. An individual will, however, only be covered by this additional protection if they are eligible to bring an unfair dismissal claim, ie only if they are an employee and have the requisite two years of continuous employment (see Practice Note: Entitlement to claim unfair dismissal). The enhanced protection works as follows: • if the sole or principal reason for the dismissal of any employee of the transferor or transferee, whether the dismissal occurs before or after the transfer, is the transfer

Calculation of holiday entitlement The position of a worker working compressed hours will be the same as that of a ‘normal’ full-time worker, ie they will be entitled to 5.6 weeks' leave each ‘leave year’, made up of: • a basic entitlement to a minimum of four weeks' annual leave each leave year, implementing the right to annual leave under Directive 2003/88/EC, the Working Time Directive • an additional entitlement to 1.6 weeks' annual leave each leave year, which is a right under domestic legislation only Statutory paid holiday entitlement is limited to 28 days. Therefore, a worker working six days per week is entitled not to 33.6 days' leave (5.6 x 6), but only to 28 days' leave. For further information, see Practice Note: Holiday—Statutory holiday entitlement. If