Managing the Relationship with Your Employees
We advise employers on a wide range of day-to-day issues involving their employees. As an employer, you want your business to be running efficiently and smoothly, and this sometimes means quickly accessing robust and practical advice. Managing the employment relationship is an important part of working life, and staying up to date with what you need to do is essential. We can provide you with guidance and checklists to help your managers support your employees.
We are here to help with all day-to-day employment issues, which include:
- Redundancies and organisational changes
- Recruitment and terms and conditions of employment;
- Disciplinary and Grievance procedures;
- Family Friendly Leave (for example, maternity, paternity, and share parental leave etc.)
- Holiday entitlement and holiday pay
- Managing Sickness Absences
- Managing Poor Performance
- Trade unions, collective disputes and industrial action
- Settlement Agreements
Defending you in Employment Tribunals
Defending a claim has many negative ramifications for your business, not only are there the financial costs, but also management time and potential damage to your reputation.
If you are unable to settle a potential claim, we can ensure that your case is prepared in a costly and timely manner to reduce management time and ensure that your case is prepared efficiently and effectively.
We will always be upfront with you about the prospects of success of defence and explore settlement where appropriate to protect your business.
Mergers and Acquisitions
If you are buying or selling a business, we work closely with our commercial team to ensure that the employment issues which arise are dealt with effectively.
Those employment issues generally arise due to the Transfer of Undertakings (Protection of Employment) Regulations, known as TUPE, which protects an employee’s existing employment rights and terms when a business changes ownership.
TUPE effectively means that the incoming business steps into the shoes of the outgoing owner of the business without there being any impact on employees. This is rarely the commercial reality, and it is important to ensure that the obligations imposed by TUPE are dealt with appropriately to protect both businesses against claims from employees.
TUPE applies to asset purchases as well as to service provision changes and imposes obligations to provide Employee Liability Information (known as “ELI”) and duties to provide information to employees and consult with them.
Failure to comply with these obligations can be very costly to your business, and we can provide you with the legal expertise to support you through the process.
Dismissal of Senior Executives
When you need to remove a senior executive or director from your business, this requires careful handling. There are additional considerations to be had on how it is dealt with. This is due to the fact that they might hold more than one position within your business (i.e., they are a Companies House director as well as an employee and or shareholder), or they might have control over commercially sensitive information.
We have experience advising on the termination of senior executives, from large corporations to family-run businesses and have expertise in the issues which arise.
We will discuss with you the particulars of your situation and advise on the tactics, timing and procedure you can use to remove the senior executive whilst protecting your business successfully. This involves advising on: –
- Restrictive covenants;
- Confidentiality clauses;
- Returning company property;
- How to deal with the discussions with the senior executive;
- What is the most appropriate procedure to follow in the circumstances;
- The risks involved and the management of those risks;
- Formulating settlement offers;
- Protected conversations;
- Messaging internally and externally about the departure of the senior executive.
It is important when recruiting that you comply with various legal requirements, including providing a written statement of the terms of their employment before they start work for you.
This is an ever-changing area of employment, and it is important you have access to up-to-date, commercially pragmatic advice. We have many years of experience advising clients about how to ensure you are fully compliant with the various legal requirements to ensure that your business is not subjected to penalties or expensive litigation.
Protected conversations are “off the record” discussions where there is a proposal for an employee to leave employment even when there are no issues or disputes.
Protected conversations are intended to give employers and employees the freedom to negotiate settlement agreements in the knowledge that their conversation cannot be used as evidence in unfair dismissal claims (provided there has been no improper conduct).
Protected conversations can therefore be started by an employer or an employee.
Such conversations will only remain confidential and will be inadmissible before a tribunal if they do not involve:
- Claims relating to automatically unfair dismissal, such as whistleblowing, trade union membership or asserting a statutory right.
- Claims made other than on the grounds of unfair dismissal, for example, claims for discrimination
- Claims relating to breach of contract or wrongful dismissal (failure to provide adequate statutory or contractual notice, whichever is the greater);
- Improper behaviour by the employer.
What is Improper Behaviour?
There is no definitive definition or description of what would amount to improper behaviour, but it would certainly include the following:
- All forms of harassment, bullying and intimidation (which includes offensive words or aggressive behaviour)
- Physical assault or the threat of physical assault and other criminal behaviour
- All forms of victimisation;
- All forms of discrimination because of age, sex, race, disability, sexual orientation, religion or belief, transgender, pregnancy and maternity and marriage or civil partnership; and
- Putting the employee under undue pressure, which includes
- Not giving them a reasonable period (at least 10 days) within which to consider any offer;
- Informing the employee that any rejection of the offer would result in dismissal;
- The employee threatens to undermine the employer’s business reputation if a settlement agreement were not signed (unless doing so would be regarded as “whistleblowing”).
What is Not Improper Behaviour?
The following is unlikely to amount to improper behaviour
- Setting out neutrally the reasons that have led to the proposed settlement agreement;
- An employer factually stating the likely alternatives if an agreement is not reached, including the possibility of disciplinary action;
- An employer factually stating that if an employee refuses a settlement agreement and any subsequent disciplinary action results in dismissal, then the employee may not be able to leave on the same terms as set out in the proposed settlement agreement;
- Not using the template letters or model agreement set out in the Annexes to the ACAS guide;
- An employer not agreeing to provide a reference;
- An employer not paying for the employee’s independent legal advice on the terms of the settlement agreement;
- An employer encourages an employee, in a non-threatening way, to reconsider a refusal of a proposal.
A settlement agreement (used to be known as a compromise agreement) is a legally binding contract between an employer and an employee. Its effect is that an employee gives up their rights to bring any potential claims before an employment tribunal, usually in return for financial and non-financial benefits (for example, a reference).
A Settlement Agreement is only binding if the employee takes independent legal advice on the terms and effect of the Settlement Agreement. We have a wealth of experience drafting settlement agreements to ensure that your business is protected.
If you would like to contact one of our Employment team directly, please see their details below or click on the Contact Us button.
Dorlee Monschau – [email protected]
Employment Fees Guide For Unfair Dismissal and Wrongful Dismissal Claims
Advice and representation before an Employment Tribunal in relation to unfair dismissal and wrongful dismissal claims are likely to fall within the following range of costs:
- Straightforward cases involving a 1 day hearing: £10,000.00 to £15,000.00
- Medium complexity cases involving a 2 to 3 day hearing: £15,000.00 to £20,000.00
- Highly complex cases involving a hearing lasting for more than 4 days: £20,000.00 to £100,000.00.
The above cost ranges does not include: –
- VAT which will charged at the relevant rate at the time the service is provided; currently 20%.
- Advocacy at the final hearing of the case, whether this is done in-house or by an appointed barrister.
- Disbursements (see Disbursements section below).
Most unfair dismissal claims and wrongful dismissal have other claims bought as the same time. For example, it might be argued that an unfair dismissal was for a discriminatory reason and a wrongful dismissal claim might also be argued as a breach of contract claim. The above figures only apply to the unfair dismissal and wrongful dismissal.
It is not only whether other claims are brought alongside unfair dismissal and wrongful dismissal claims that affect the likely costs involved. Every case is different and fact dependent, so the above fees are a guideline.
Other factors which affect the likely fees in a case include, but are not limited to: –
- Whether the other party has legal representation;
- The number of parties to the litigation;
- How reasonably the other party conducts themselves within the Employment Tribunal claim;
- Whether it is necessary to have a preliminary hearing (this is an administrative hearing which identifies the issues in dispute);
- The number of documents or witnesses;
- Whether it is necessary to have experts instructed;
- Whether the parties want to explore Judicial Mediation to try to resolve the case;
- Whether there are applications made within the proceedings, such as for specific disclosure of documents, subject access requests, costs etc.
- Whether there are other claims bought at the same time, such as discrimination, whistleblowing, TUPE, collective redundancies etc.
Unless a fixed fee is agreed for the work undertaken, we charge on an hourly rate basis. Currently our fees range from £120.00 plus VAT an hour for a Trainee solicitor to £275.00 plus VAT an hour for a Partner.
We do not offer “no win, no fee” arrangements or Conditional Fee Agreements.
Disbursements are expenses incurred in your matter payable to third parties, such as barristers’ fees, independent medical expert fees, or to us, such as travel expenses and photocopying/printing costs etc. There are no Employment Tribunal fees involved in starting or defending tribunal cases.
We will pay these expenses on your behalf and will require a payment on account before the costs are incurred. We will inform you in advance of these expenses arising.
VAT which will charged at the relevant rate at the time the service is provided; currently 20%.
Stages of a Tribunal Case
- For the majority of cases, it is necessary to explore whether settlement of the case is possible before proceedings are started. This involves contacting ACAS Early conciliation. If settlement negotiations are unsuccessful, an Early Conciliation Certificate is issued.
- Following receipt of the Early Conciliation Certificate the employee (“the Claimant”) sends a Claim Form to the Employment Tribunal. The Employment Tribunal will send this to the named the Employer (“the Respondent”).
- Following receipt of the Claim Form the Respondent is given 28 days within which to send their defence (“known as the Response”) to the Employment Tribunal.
- The Claimant prepares a Schedule of Loss and the Respondent is able to prepare a counter-Schedule of Loss.
- In most straightforward cases the Tribunal will send out standard “Directions”. Directions set out the timetable of the steps necessary to prepare the case for final hearing.
- In discrimination or other types of complex cases, there will be a hearing before an Employment Judge to decide the issues to be decided at the final hearing and set out the Direction, the timetable to get matters prepared for the final hearing. This will require attendance at a Case Management Hearing.
- Listing the relevant documents in each party’s possession or control and exchanging them with the other party (known as “Disclosure”).
- Meeting with witnesses to take their statements, drafting and amending the same before they are exchanged with the other party.
- Reviewing the other party’s witness statements
- Preparing a list of issues (to the extent it has changed from the Preliminary Hearing), a chronology of events and a cast list and agreeing the same with the other party’
- Preparation, attendance and representation at final hearing. The final hearing will generally also include remedies. If this is not the case due to time limitations, it is possible for there to be a separate Remedies hearing.
The above is a general overview and it might be that there are additional stages required, depending on the nature and facts of the case. For example, it might be that an employee claims interim relief and wants to be reinstated or it might be necessary to instruct a medical expert or have an additional preliminary hearing to decide issues in advance of the final hearing.
If a case is settled during the Early Conciliation procedure, it can take between 4 to 6 weeks to conclude.
The time it takes from the start of a case to final hearing depends on many variables, for example whether experts are involved, the number of case management hearings, and how many days the hearing is listed to take at final hearing. It is possible for cases to take between 6 months to a year or longer. Given the many pressures on the Tribunal Services, the reduction in the number of Employment Judges available to hear cases, the time taken can easily be in excess of one year. It is also possible that a case listed for final hearing can be postponed the day before a final hearing due to the unavailability of an Employment Judge to hear the case.
When the case is listed and for how long, whether it proceeds when it is intended are all factors beyond our control and the above is intended as an indication of the time frames.
Dorlee Monschau has been qualified since 1997 and has more than 26 years’ experience in dealing with employment matters. Her work is supervised by Adam Workman.
Get in Touch
Are you seeking help and advice on employment law?
Whatever employment support you need, please get in touch with our team, who will be able to advise you on the best way forward.