Job related FAQs

If you have worked for your employer for at least two years, you may be able to claim unfair dismissal if your employer does not have reasonable grounds to dismiss you or fails to follow a fair disciplinary procedure. Normally, you will be given a number of disciplinary warnings and have the chance to improve your performance or conduct.

You could be dismissed straight away in cases of ‘gross misconduct’ such as theft or fighting. Even then, the employer should hold a proper disciplinary hearing and give you a chance to tell your side of the story first.

If you have worked for your employer for less than two years, you cannot normally claim unfair dismissal but there are exceptions. For example, you can claim unfair dismissal if you were dismissed for trade union activities or whistleblowing. You can also take action if the dismissal was discriminatory: for example, because of your race, age, disability or gender.

If you have worked for your employer for less than two years you generally have little protection against being dismissed unless it is for an automatically unfair reason such as whistleblowing or discrimination. So if the employer decides to dismiss you for failing to meet targets, you are unlikely to be able to take action against them.

If you have more than two years’ continuous service, your employer can take disciplinary action against you but it needs to be fair. You may be able to claim unfair dismissal if the targets are unreasonable, if you are not given the training and tools you need, or if the employer does not follow a fair disciplinary procedure. If all these steps have been taken, you can be dismissed for failing to meet your targets.

Some rights are legally protected. For example, you are entitled to the minimum wage, and to set amounts of holiday. You are entitled to be a member of a trade union and take part in official industrial action. You are also generally protected against being dismissed for taking action over health and safety — for example, reporting a health and safety problem to your manager.

It is automatically unfair if your employer dismisses you for any of these reasons. You can claim unfair dismissal, regardless of how long you have worked for your employer.

Your employer will need to hold a disciplinary hearing before dismissing you.

If you cannot attend the hearing because you are on sick leave (or call in sick on the day), the employer might decide to reschedule it for another day. Or if you are on long-term sick leave, the employer might suggest alternatives: for example, asking you if you can attend the meeting by phone or send a union representative instead. Or the employer might go ahead with the hearing anyway, leaving you to put forward any objections at an appeal hearing.

In practice, this means that sick leave may delay any dismissal but not prevent it altogether.

As far as being made redundant is concerned, you need to be selected for redundancy fairly and a fair redundancy process must be followed. You could claim unfair dismissal if your employer doesn’t consult with you about the redundancy, or if you are selected for redundancy because of your illness.

You must be selected for redundancy on a fair basis. The way individuals are chosen should be clear and consistently applied.

Your employer can take into account a wide range of factors, including job performance, attendance or disciplinary records, skills and experience. The employer also needs to avoid potential discrimination: for example, making all the oldest employees redundant.

So it may be possible for you to be selected for redundancy even though you have more experience — but the employer should be able to show that you were chosen on a fair basis. Your employer also needs to consult with you about your selection and give you the opportunity to object.

Your employer cannot normally force you to retire at a fixed retirement age. You might be able to claim age discrimination and unfair dismissal.

Exceptionally, an employer may set a fixed retirement age if they can show that this is a good way of achieving a reasonable objective. For example, a fixed retirement age might be used in occupations that need a high level of physical fitness. Even then, the employer would need to be able to show that the fixed retirement age was a reasonable solution (rather than individual fitness tests, for example).

Your employer is not allowed to discriminate against you because of your pregnancy (or because you are on maternity leave). Being dismissed because of pregnancy is automatically unfair, regardless of how long you have worked for your employer.

This does not mean that you cannot be dismissed or made redundant for any reason. For example, you could be dismissed for stealing from your employer. You could be made redundant if you were chosen for redundancy in a fair way that had nothing to do with your pregnancy.

But you cannot be dismissed or made redundant because of your pregnancy, for example because:

• You need time off for antenatal care.
• It is no longer safe for you to do your job (the employer must find you alternative work, or put you on paid leave).
• Your employer doesn’t want to pay you maternity pay and also pay for cover.
• You suffer from a pregnancy-related illness.

Unless you have a clear contractual entitlement to a specified level of bonus or commission, your employer may be tempted to withhold payment.

For example, your employer may claim that any bonus is discretionary rather than a contractual entitlement. But if it is normal practice for your employer to pay bonuses, you may be able to argue that they have in fact become an entitlement — regardless of what the written contract says.

Another common situation is where the contract states that bonuses are not payable to employees who are on notice, or have stopped working for the business. Sometimes contracts distinguish between ‘good leavers’ — who have to leave for health reasons, for example — and ‘bad leavers’ who have been dismissed. And it is not unheard of for employers to time a dismissal in order to avoid paying a bonus.

Again, you may be able to argue against this. For example, you might not have been dismissed for a fair reason, or following a fair procedure.

If you have been dismissed without being paid the bonus or commission you think you are entitled to, you should take legal advice. It may well be possible to negotiate a settlement agreement with the employer, where they agree to pay you some or all of the amount you expect.

You are contractually required to work your notice period (unless your contract says otherwise). You continue to be paid as normal.

In practice, if you are being dismissed your employer will normally pay you a lump sum instead and allow you to leave immediately.

If the employer requires you to work your notice and you do not, the employer can treat this as unauthorised absence and will not normally have to pay you for the days you miss. In principle the employer could also sue you for any loss they suffer (for example, if they need to pay for cover).

A compensation award can be made up of two parts: a ‘basic’ award and a ‘compensatory’ award.

The basic award depends on how long you worked for the employer and your age, and is calculated in the same way as a redundancy payment:

• Half a week’s pay for each year that you were under 22
• One week’s pay for each year aged 22 to 40
• One and a half weeks’ pay for each year aged 41 or over

The basic award is based on a maximum weekly wage of £464 and a maximum of 20 years’ service — so the basic award cannot be higher than £13,920 (one and a half weeks’ pay at £464 for 20 years).

The employment tribunal may also make a compensatory award, to compensate you for financial loss such as loss of earnings. This is normally capped at a maximum of £76,576 or one year’s salary, whichever is lower. There is no automatic cap if the dismissal was in relation to whistleblowing or raising health and safety concerns, or if your dismissal was the result of discrimination.

Awards can be reduced in some circumstances: for example, if you have already received payments, if your conduct contributed to the problem or if you have failed to follow the correct procedure.

The laws that govern redundancy must be followed very carefully, and are designed to offer the employee some time, advice and facilities to help them find alternative work, although the level of help you receive can depend on the amount of time you’ve worked permanently for the company, and it can also depend on certain terms in your contract. 

Normally you are entitled to at least the statutory minimum notice:

• One week’s notice if you have been employed for more than one month but less than two years
• Two weeks’ notice after two years
• An additional week for each extra year of employment, up to a maximum total notice period of 12 weeks.

You may be entitled to a longer period of notice if your contract of employment says so.  In fact it’s not uncommon for people who work together to have different contract terms, due to changes and developments in company employment policies.  So you may have a notice period in your employment contract of one month, while a colleague of yours has a notice period of three months.

Whatever notice period you are given, you’re entitled to be paid at your normal rate during that period.  You may also be given what’s known as a consultation period, which may overlap your notice period and may be longer than your notice period, although consultation and notice would end on the same day.  A consultation period gives you and your employer time to discuss and clarify important issues relating to your redundancy such as; why you’re being made redundant, options for alternative employment within the company, assistance with preparing your CV for subsequent job hunting.

Exceptionally, you can be dismissed without notice for gross misconduct — typically things like theft or fighting. Your employer’s disciplinary procedure should state what they consider to be gross misconduct.

Naturally, these days there’s much help you can get if you’re facing redundancy.  Your local Jobcentre is a good starting point, and it’s a good idea to contact them as soon as you’re given notice of your redundancy, as this can give you a little extra time to find a new job and make this transitional phase as seamless and stress-free as possible.

Length of service

You will be entitled to statutory redundancy pay if you have worked for your employer for at least two years. For the purpose of calculating redundancy pay, your service length is capped at 20 years.

Age during employment

Your general pay allowance will differ depending on your age during your employment. For each full year of employment, you will be entitled to:

• Half a weeks’ pay if you were 22 years or younger
• One weeks’ pay if you were aged between 22 and 41 years
• One and a half weeks’ pay if you were 41 years or older

Date of redundancy

If you became redundant on or after 6 April 2018, your weekly pay is capped at £508. This means the highest statutory redundancy pay you can receive is £15,240 (calculated at one and a half weeks’ pay of £508 for 20 years). If you became redundant before 6 April 2018, this amount will be lower.

You can also claim redundancy pay if:

• you’re eligible; and
• you have temporarily been laid-off without pay or less than half a weeks’ pay; and
• the lay-off lasts for more than:
  • 4 weeks in a row; or
  • more than 6 non-consecutive weeks within a 13 week period

You have to tell your employer in writing that you intend to claim within 4 weeks of your last non-working day within the 4 or 6 week period. Your employer may reject your claim if your normal work will likely resume within 4 weeks and continue for at least 13 weeks.

Higher rates

Your employment contract may stipulate a higher rate of redundancy pay or your employer may negotiate a higher rate with you. You may want to take legal advice before accepting any offer made by your employer.

Notice required

In addition to your redundancy pay, you are entitled to redundancy notice. Your employer can insist that you continue to work (and be paid) during your notice period. Alternatively, they may not require you to work your notice, offering ‘pay in lieu of notice’ instead.

Tax obligations

You may be entitled to tax-free ‘pay in lieu of notice’ if this is stipulated in your employment contract.

There is a tax-free threshold on all redundancy pay (including any severance pay) less than £30,000.

Exceptions

You will not be entitled to redundancy pay if:

• Your employer decides to continue employing you
• You refuse a suitable alternative role within the company without valid reason
• Your employment is terminated due to misconduct
• You work as:
  • a merchant seaman
  • former registered dock worker
  • a civil servant (including police officers and members of the armed services)
  • an apprentice who has not reached the end of their apprenticeship or who is not an employee at the end of their training
  • a domestic servant who is a member of the employer’s immediate family

More information

You can calculate your statutory redundancy pay using the government’s online calculator.

If you would like legal advice specific to your situation, contact one of our specialist employment solicitors on {{phone}}

It’s worth bearing in mind that an employer cannot just ‘go through the motions’ — they need to follow a fair disciplinary procedure. This could take months, with a series of disciplinary meetings, warnings and opportunities to improve before you are finally dismissed. During this time, you continue to be paid, and the employer knows that when you are dismissed there is still a risk that you could bring a claim against them.

You should attend any meetings that are arranged, and be fully prepared to argue your case. You have the right to be accompanied and can ask a trade union representative or a work colleague to come with you. The evidence you use to defend yourself may help if you later try to show that your dismissal was unfair.

If you believe that your employment will terminate in any event, the best solution is often to negotiate a settlement agreement. The employer pays you compensation, you give up the right to make a claim to an employment tribunal or court, and your employment is terminated. Your lawyer can advise you how to approach your employer and help you negotiate the settlement agreement.

In most cases, an employee with less than two years’ continuous service cannot claim unfair dismissal.

However, there are some important exceptions where a dismissal is automatically unfair, regardless of how long you have had the job. For example, these include dismissals for:

• Being pregnant or on maternity leave.
• Being a member of a trade union or taking part in various trade union activities (including official industrial action).
• Properly reporting various kinds of wrongdoing at work — so-called ‘whistleblowing’.
• Exercising rights such as taking family leave.

Equally, you cannot be selected for redundancy for any of these reasons. If you think you have been dismissed or made redundant without a fair reason, you should take legal advice.

Your employment rights are protected, but you can still be made redundant. This can’t be just because of the takeover, but might happen as part of a reorganisation afterwards. The redundancy needs to be genuine, not just an excuse to dismiss employees.

Your original employment contract remains in force. If you are made redundant, your redundancy notice and redundancy pay are based on your total length of service since you first started working for the company, not the date of the takeover.

It is not uncommon for employees to be treated unfairly when a company is taken over. You should take legal advice on your particular circumstances.

Your employer should follow a fair disciplinary process rather than trying to force you out. Of course, the employer may not want to do this: perhaps because the disciplinary process would take too long, or they want to avoid paying you during your notice period, or there isn’t any good reason for dismissing you.

In principle, you are entitled to resign and then claim unfair dismissal.

In practice, if your employer wants you out the best solution may be to use your lawyer to negotiate a settlement agreement. The employer agrees to pay you a negotiated amount and you give up the right to take them to an employment tribunal or bring a court case. How much you might get will depend on factors such as how long you have worked for them and what your contract says.

When your company is taken over your employment rights are protected under the ‘TUPE’ regulations. Your existing employment terms and conditions stay the same. Your new employer cannot force you to accept a lower salary or other changes to your terms and conditions. Provided you’ve been employed for at least two years, you are protected against unfair dismissal.

There are circumstances where the new employer might be entitled to make you redundant as part of a reorganisation — but not just because of the takeover. Sometimes employees will be asked to reapply for their jobs as part of the process of choosing which employees should be made redundant.

It’s not uncommon for employees to be unfairly dismissed when a company is taken over. You should take legal advice on your particular circumstances.