Employment Law Services

CND Litigation services are reputed for providing employment law services to business. Our services include documentation, employment law advice and communication via letters. No matter what problem you face as an employer we have probably dealt with a similar situation before and have the experience and sources of information available as we believe that our clients deserve the best service possible in a complicated and highly specialised field.

Our aim is to provide the best solution for you. We focus on your needs to ensure you are provided with the guidance and expertise you require.

Our clients concerns are handled with empathy and understanding throughout, so you can feel assured that you will be dealt with in a professional and effective manner.

Legal Advice for Employers

Maternity leave: what happens to holiday leave and sick pay?

Some employers aren't clear how maternity leave may affect sickness absence or holidays. For example, what happens to paid holiday during maternity leave and what should you do if an employee is off sick when maternity leave starts? What follows is the current thinking on some of the most common questions, but as it's a complex area it always worth taking legal advice.

If an employee is off-sick because of her pregnancy, then she is entitled to sick pay in the normal way. (Antenatal care does not count as pregnancy-related illness in this respect.) Her pregnancy sickness should be recorded separately from other illness and should not be counted towards a total sickness record. Neither can pregnancy-related sickness absence be used as a reason for disciplinary action or redundancy selection.

Long term sickness

In July 2012, the Court of Appeal made a decision on an important sick-leave case. It ruled that an employee on long-term sick leave is entitled to carry holiday leave forward to the next year, even if no specific request had been made to do so.

The ruling has resolved two conflicting decisions made by the Employment Appeal Tribunal (EAT) in 2011 concerning the need to submit a request for leave to be carried forward.

The implications of the Court's decision could be costly for employers. On termination of employment, an employee who has been on long-term sick leave must be automatically paid for all the holiday that has been accrued over that period, whether or not a request had been made to carry it over.

When prearranged statutory holiday coincides with sick leave, employees should let their employer know as soon as reasonably practical. Employees are allowed to take their holiday at another time. If they remain sick until the end of that holiday-leave year, they can reschedule their holiday in the following year. If an employee turns holiday leave to sick leave, they should expect to receive sick pay only, because they are unfit to do the job during that period.

Furthermore, employees continue to build up their holiday entitlements while they are off sick, but don't have to take their holiday during that time. They can carry it over to the next year if they haven't been able to take holiday while sick.

A lot of employers don't realise that they are following out-of-date practices. Or that they need to introduce new policies to comply with employment legislation.

Sickness and holidays leaves: what happens when they coincide?

There’s particular confusion in the workplace about how different kinds of leave relate to each other when they seem to be happening at the same time.

Employee on sick leave who wants to take a holiday during that time? Can they do so?

Parents and carers have the right to request flexible working, such as working part time hours, changing the hours they work or working from home. An employer can only refuse a request for a sound business reason. If the employer refuses to consider the request or refuses it based on incorrect facts, the employee can complain to the Employment Tribunal.

Who is entitled to sick pay?

Any of your employees who have a contract, including temps and new employees
They must have been sick for at least four days in a row – not necessarily working days
They must earn at least £102 per week (as of April 2011)
They must formally tell you that they are sick
Statutory sick pay can last for up to 28 weeks

Unpaid Wages (unlawful deduction of wages)

Has the employer been deducting money from pay without agreement?

It is unlawful for an employer to make a deduction from pay unless:
It is required by statute or a clause within the employment contract (eg tax, national insurance, student loan, CSA payment or pension contribution)

There is prior written consent to the deduction (eg to repay an advance)

An Employment Tribunal hears any claim for deductions from any wages, bonuses, commission or holiday pay.

An employer may claim that the deduction was lawful by arguing that your particular circumstances are legally excluded. Examples of payments that are excluded include expenses incurred in the course of the mployment or any benefits that cannot be exchanged for money, goods or services.

Employees can bring a claim to the Employment Tribunal but there are time limits. CND can advise on the procedral aspect of this.

Advice on the various aspects of this area can be obtained from CND. Get in touch today.

Discrimination

CND litigation is passionate about helping individuals deal with all aspects of discrimination and will ensure that all matters are handled with great care and sensitivity.

It is unlawful to discriminate against workers because of a physical or mental disability or to fail to make reasonable adjustments to accommodate a worker with a disability.

Disability discrimination can appear in many forms. However, not all forms of disability discrimination can be obvious and as such the law provides protection in the following ways.

Age discrimination, now prohibited in the workplace, can be characterised as unfair treatment based on your age rather than your job capabilities.

Bullying and harassment at work can be very traumatic and distressing and have far reaching and devastating consequences. Many employees often endure bullying or harassment at work without knowing where to turn or who to talk to.

It is vital that your rights as an employee are explored quickly and thoroughly.

Bullying and harassment can take many different forms and is not always face to face. It may occur through written communications such as email, or over the telephone, or by using visual images such as embarrassing photographs or sexual material.

It may be that eployees have been subjected to offensive, intimidating, malicious, or insulting behaviour or an abuse or misuse of power that has undermined, humiliated or injured them.

Equally some employees may have been subjected to unwelcome conduct relating to race, sex, age, disability, religion or belief or sexual orientation which makes them feel intimidated, degraded, humiliated or offended.

CND can advise you on the implications, the documentation and investigation when discrimination is raised. Get in touch today.

Unfair Dismissal

This is a complex area and can include circumstance which are automatically unfair and the employee has to establish their dismissal was for trade union membership or activity, pregnancy related, whistle-blowing, due to a transfer of undertaking or enforcing their statutory rights.

The employer can rely on several scenarios where the dismissal is potentially fair and presently these are capability, conduct, redundancy, contravention of a statutory enactment(illegality) or some other substantial reason that justifies the dismissal of an employee holding the position which the employee held.

Advice on the various aspects of this area can be obtained from CND. Get in touch today.

Constructive Dismissal

An employee is constructively dismissed if they resign in response to behaviour by their employer that is so serious as to amount to a fundamental breach of the employment contract. The breach could be of an express term (such as failing to pay wages) or an implied term. Most constructive dismissal claims relate to a breach of an implied term of “mutual trust and confidence”, which essentially means that both employer and employee should treat each other with respect.

To successfully claim constructive dismissal, the employee must show that they resigned “in response” to the employer’s breach of contract. This means resigning close in time to the event or last straw. If an employee delays, they could be held to have waived the breach and lost the right to claim.

Advice on the various aspects of this area can be obtained from CND. Get in touch today.

Compensation Awards

The tribunal assesses unfair dismissal as a basic element with reference to the age of the individual and a notional factor for each year of service but only up to 20 years and the maximum amount of weekly pay is £450. Anything earned above this is not taken into account. So it is important to get the right advice at the right time. The maximum award is £13,500(which is made up of £450x20( years)x 1.5(assuming the person is over 41 years of age). The notional factor can vary and be half a weeks pay if under 22 years of age and only one weeks pay per year of service if between 22 and 41 years of age.

The maths aside it is important to obtain advice at the earliest opportunity.

The above is what has been described as a basic award and there are other elements to include loss of earnings, fringe benefits and loss of statutory rights but again the maximum in respect of the compensatory award is £74,200.

Again expert advice on the amount to be paid and received is essential.

Advice on the various aspects of this area can be obtained from CND. Get in touch today.

Accidents at Work and Health & Safety

Many people worry about being treated differently at work or that they may be dismissed if they bring a claim for compensation after a work accident. It is unlawful for an individual to be dismissed or badly treated because they report a breach of health and safety law. Our employment team can help you if this issue has arisen. We can also advise you if you are subjected to a capability procedure if you are off sick due to a workplace accident.

We believe that employees should be able to do their jobs without risk of injury or illness, be that physical or psychiatric in nature.

Employers have a duty to keep the workplace as safe as reasonably possible, to provide employees with a safe working environment, safe work tools, machinery and equipment, and protective clothing. Where employers fail to comply with this duty and an employee suffers injury or becomes ill as a result, the employee is entitled to claim compensation, which would include compensation for the injury or illness itself, and any loss of earnings or other expenses such as treatment costs. Every employer is required by law to have insurance to cover such claims, known as employers’ liability insurance.

Advice on the various aspects of this area can be obtained from CND. Get in touch today.

Bonus Disputes

Our team of employment professionals can assess the terms surrounding a bonus payment and quickly establish if the bonus is fair.

Many employers mistakenly believe that where a bonus is expressed to be “discretionary” they have complete control over the amounts they award. This is rarely the case. Express and implied terms in employment contracts, and the employer’s own custom and practice, will have an impact on how an employer can act.

Bonus payments can make up a large proportion of an employee’s remuneration, and in certain professions it can be the principal share of a remuneration package. We understand the importance of bonus payments and will help to ensure that the bonus is fair and reasonable.

It may be possible to challenge the decision not to award a bonus or the amount awarded if the employer has failed to exercise discretion in the correct manner.

The key steps in any bonus dispute are critically reviewing the contract of employment and discussing the employer’s past and current actions. We will determine whether and when a bonus should be paid and the action that can be taken if the employer fails to act fairly.

Our employment consultants have experience in this complex area and can help.

Advice on the various aspects of this area can be obtained from CND. Get in touch today.

Restrictive Covenants

A restrictive covenant is a clause within a contract of employment that generally has an anti-competitive and restrictive effect. It seeks to restrict an employee from engaging in activities after an employee has left their current employment.

It may also deny an individuals ability to work and make a living in an industry in which they are experienced. For that reason, they are only enforced if they do no more than is necessary to protect the employer’s legitimate business interest.

Advice on the various aspects of this area can be obtained from CND. Get in touch today.

Employment Law Services

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