Legal FAQs

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Important Legal Notice

The information on this website does not constitute specific legal advice and should not be relied on as doing so. Users should contact Thomas Mansfield for advice about particular matters. Users should also be aware that laws and regulations might be different outside England and Wales.

Deductions from Pay

If the failure to pay the expenses follows an application for repayment under the Employer’s procedure, this will normally represent a breach of contract entitling the Employee to make a claim for breach of contract in the County Courts or in the Employment Tribunal if the employment has reasonably ended.

In circumstances where an accidental payment of wages is being made, the Employer may make a reduction in respect of the overpayment from the Employee’s future wages or salary.  If the overpayment has been made over an extended period of time and the Employee, not realizing about the overpayment, may have a defense if they can provide that the contractual position has changed.

An Employer is not under an obligation to make a payment for wages unless the Employee turns up at the contractual start time, save where there is a contractual entitlement to be paid in these circumstances (the terms of the contract will need to be scrutinized in such a case).  This is the case irrespective of the reason of why the Employee is late, for example, perhaps because train or bus was late.

The onus is on the Employee to get in to work irrespective of the weather conditions.  The Employer is under no obligation to pay an Employee if they are unable to make it in to work due to the weather conditions.  However, an Employer may wish to consider whether the Employee could work from home or any other viable alternative arrangement.  Of course, in order to avoid the loss of a day’s wages, the Employee may request time off as holiday which may be granted at the Employer’s discretion.

If the Employee is ready and able to undertake work then the normal rule is that the Employee should be paid.  If the Employee is sick or injured then the Employee should normally be paid company sick pay or statutory sick pay depending on the contractual entitlement.  It is only in circumstances where the Employee has deliberately refused to work without justification that an Employee may be able to make a deduction from wages.  In this case, the Employer would be expected to have carried out a reasonable investigation into the circumstances before making a decision to make a deduction.  In addition, if the Employer acts inconsistently in making deductions and authorize time off, this may in certain circumstances be found to be unlawfully discriminatory.

If the failure to pay the wages happened on a one-off occasion then it would not normally be sufficient for it to entitle the Employee to resign and claim constructive and unfair dismissal.  However, the Employee may bring a claim for breach of contract in the County Court or a claim for unlawful deductions in wages from the Employment Tribunal.

A worker may bring a claim in the Employment Tribunals to recover the amount of the unlawful deduction.  If the Employer is ordered to pay an unlawful deduction by an Employment Tribunal, the Employer will not be able to recover the amounts through the Employment Tribunals or the County Court system.

This would represent a deduction from wages. In this case, an Employer must ensure that the deduction is either required or permitted by stature or authorized by a relevant clause in the contract of employment or obtain prior written permission from the Employee for the particular deduction to be made.


An employment tribunal may also make a declaration or a recommendation.

Compensation will be awarded for losses arising from the act of discrimination. An important part of this figure usually consists of lost earnings. A calculation is made of losses up to the date of the tribunal and may be projected into the future depending on how long the tribunal believes losses will continue. The assessment of losses will take into account earnings from a new position which will be deducted from the award. If the Employee finds alternative work paying the same or more, losses will stop from that point.

In discrimination cases an award for injury to feelings may be made. This will fall into one of three cases depending on the severity and length of time of the suffering. Most cases will fall in the lower band of below £5000, more severe cases will fall into the middle range of £5000 to £15000 and the most severe over £15000. In some cases part of this award will be made up of a separate award for personal injury.

There is no upper limit on the award of compensation in a case of unlawful discrimination.

No. This contrasts with the situation with unfair dismissal.

The usual time limit is three months from the act complained of or the last in a continuing series of acts. This may be extended in exceptional circumstances such as where a grievance procedure is still continuing at the time of the expiry of the three month time limit.

No. However, an employee who has not submitted a grievance prior to making a claim will have evidential problems if they have not first provided an opportunity for the employer to investigate.

As well as being liable for its own acts of discrimination the Employer will in most cases be liable for the actions of its Employees. For example in a case of harassment the Employer can be held responsible for the actions of the perpetrator even where it is unaware of what is going on. There is a defence where all reasonably practicable steps have been taken to prevent the harassment.

It is possible to name the individual discriminator as a respondent to the claim as well as the Employer and sometimes a separate award of compensation can be made.

Depending on the form of discrimination in question such a defence that the discrimination is due to a genuine occupational qualification or requirement may be available. An example is a requirement for a changing room assistant to be female.

To establish unlawful discrimination the person complaining must first establish that there are primary facts from which discrimination could be inferred. It will not always be blatant since direct evidence (e.g. an email stating “we should not employ this young woman or before you know it she will get pregnant and want time off”) is rare. Once such facts can be shown the onus will then be on the Employer to give a non-discriminatory reason for the difference in treatment.

Discrimination by way of victimisation will occur if someone is subjected to adverse treatment because of they have made a complaint of unlawful discrimination.

Discrimination by way of harassment means that someone suffers unwanted conduct on the grounds of their sex, race etc which has the effect of violating his or her dignity or creating an intimidating, hostile, degrading or offensive environment. Such harassment could arise from inappropriate comments or behaviour such as ignoring someone. In a case of harassment there may also be an alternative route available through the civil courts under the Protection from Harassment Act 1998.

Indirect discrimination is when a requirement, condition, provision, criterion or practice is applied which is disadvantageous to a disproportionate number of people because of their sex, race etc. An example could be a new requirement to work shifts where this affected childcare arrangements for women in the workforce. Unlike with direct discrimination it is possible for an Employer to justify the discrimination if it can do so objectively for economic administrative or other reasons.

Direct discrimination is where individual suffers from less favourable treatment on the grounds of their race, sex etc. “Less favourable” means compared to a particular person or persons or a hypothetical person. For example if an Employee is not given a promotion, or has inferior terms, is dismissed or suffers from some other detriment  because of their sex, race etc they will be directly discriminated against. A defence of justification is not available to an Employer in relation to most forms of direct discrimination, though age and disability are exceptions.

There is protection against discrimination in employment on the following grounds:-

  • Sex
  • Race
  • Disability
  • Sexual Orientation
  • Religion and Belief
  • Age
  • Part-time status
  • Fixed term Contract status

Discrimination: with special reference to disability

Discrimination may also occur because of a failure to make reasonable adjustments. This places a positive duty on the Employer where the disabled person is substantially disadvantaged at work because of their condition. This could occur where some physical feature of the premises such as a staircase prevents the Employee from functioning in their job or some other aspect such as work organisation, working hours or duties.

Discrimination by way of victimisation will occur if someone is subjected to adverse treatment because they have made a complaint of unlawful discrimination.

Discrimination by way of harassment means that someone suffers unwanted conduct on the grounds of their disability which has the effect of violating his or her dignity or creating an intimidating, hostile, degrading or offensive environment. Such harassment could arise from inappropriate comments, physical contact or behaviour such as ignoring someone. In a case of harassment there may also be an alternative route available through the civil courts under the Protection from Harassment Act 1997.

Dismissing someone because of their poor time keeping resulting from their lack of mobility could amount to less favourable treatment.

The Employer does not necessarily have to have knowledge of the disability to be found to have discriminated, though this point is relevant when considering whether treatment may be justified or whether reasonable adjustments have been made.

A person may suffer disability discrimination:-

  1. If they are treated less favourably than someone who does not have a disability (this could be called disability related discrimination) and that treatment is not justified.
  2. If they are directly discriminated against compared to someone in circumstances not materially different to the disabled person.
  3. If they are harassed
  4. If they are victimised.
  5. If the Employer fails to make reasonable adjustments where the disabled person is substantially disadvantaged by a provision, criterion or practice of the Employer or a physical feature of the workplace.

The word ‘disability’ has been given the following meaning with the Equality Act 2010:-

  • physical or mental impairment;
  • that impairment has a substantial and long-term adverse effect on the person’s ability to carry out day-to-day activities.

Long term means that the effect must last or be likely to last over a year. Certain conditions such as cancer are automatically treated as a disability. If the condition is controlled by drugs or other treatment the question is whether that effect would be suffered if the treatment was taken away.

The effect must also have an impact on mobility, manual dexterity and ability to concentrate.

Holiday Pay

Yes, the Employer must calculate the holiday entitlement from the commencement of employment until the final date of termination.  This relates to the statutory number of holidays.  If the contractual number of holidays is in excess of the statutory minimum the Employee should also be paid subject to any specific clause in the contract of employment.

Employment law cases have recently been heard on the matter of average holiday pay. These cases have changed the way employers calculate holiday pay because whereas previously, holiday pay was simply a matter of paying basic pay now the courts have now ruled that in addition to basic pay, certain overtime payments, commission, allowances and bonuses must also be included in the calculation.

Holiday pay has been the subject of substantial litigation in recent years. As a result, it is no longer the case that holiday pay should be paid in reference to basic pay. Now, employers must take into account other factors that make up ‘normal remuneration’ in calculating the amount of pay to be paid when an employee is on holiday. This means that some types of overtime (such as compulsory, guaranteed or given as a matter of course), commission payments, productivity bonuses, benefits in kind, shift allowances and premiums, standby and emergency call out payments, payments that relate to seniority or professional status and travelling time and radius allowances.

For an up to date description of the litigation, which is by far from settled, please see our blog for further details or click here.

Yes, up to the statutory minimum number of holidays.  Employers may lawfully refuse to pay for holidays untaken over the statutory minimum if there is a contractual clause allowing this where the Employee is dismissed for gross misconduct.

Not unless the contract contains an express provision.


If the Employer wishes to withdraw the notice they will require the Employee’s express permission.  Once notice of redundancy has been given, it is legally binding and cannot be withdrawn even during the notice period.  If the Employer’s situation changes before notice of redundancy is given then no redundancy arises.  If during the notice period the Employee has secured alternative employment with a different Employer, it is likely that an Employment Tribunal will consider the Employee’s refusal to accept the offer of suitable alternative employment to be reasonable.  If no alternative position has been secured and the Employee unreasonably refuses to accept a suitable alternative position on the basis that they wish to obtain the redundancy payment then, in these circumstances, the Employer may be deemed to have acted reasonably in not making the payment.  Equally, if an Employee is offered a suitable alternative position either before or after notice of redundancy has been given but whilst the Employee remains in employment, the Employee may lose the right to the redundancy payment if the suitable alternative position is unreasonably refused.  Whether the position is suitable will depend upon the terms and conditions of the position, the responsibilities and status.

The Employee must have two years continuous employment by the expiry of the notice period to qualify for a statutory redundancy payment. In addition, some Employers may pay a contractual or non-contractual redundancy payment.

An Employee does have a right to take reasonable paid time off during working hours to look for new employment or make arrangements for future employment.

An Employer is obliged to consult with representatives if the intention is to dismiss as redundant 20 or more Employees. The period of consultation is a minimum of 30 days if 20 to 99 Employees are to be dismissed as redundant and 90 days where proposed dismissals number 100 or more.

A fair procedure would be to:

  • ensure that the Employee receives adequate notice;
  • consult with the Employee individually and also an Employee representative if appointed.
  • Apply a fair method of selection including (where possible) objective selection criteria in circumstances where there are a pool of similar positions; and
  • consider any suitable alternative position if available.

In addition, the Employer should write to the Employee requesting them to attend a meeting to consider the situation before any decision is taken to make the position redundant.  The Employee must be given the right to be accompanied by a fellow colleague or a certified trade union representative.  Following the meeting, if the Employer’s decision is to make the position redundant, the Employee must be notified in writing and given the opportunity to appeal.

The situation in which an Employee’s position may become redundant as follows:

  • Job Redundancy, i.e. the business closes down
  • Place of work redundancy, i.e. the Employee’s place of work closes down
  • Employee redundancy, i.e. the Employer’s requirements to carry out work of a particular kind had ceased or diminished

Right to Reasons for Dismissal

An award of compensation of up to two weeks pay may be made and/or a declaration as to the reasons for a dismissal.

An Employee with at least one year’s continuous service is entitled to receive written reasons for their dismissal if they ask for this. A request must be made within three months of the effective date of termination.

Settlement/Termination Agreements

The payments under a Settlement Agreement will usually be split into contractual and non-contractual elements for example; outstanding holiday pay or bonus is a taxable payment and will be subject to normal deductions of tax and national insurance. These payments come within the Income Tax (Earnings and Pensions) Act 2003, Section 62.

Section 401 of the Act provides an exemption of up to £30,000 in respect of payments which are not chargeable to income tax but are received upon the termination of employment.  These payments may include a statutory, contractual or ex-gratia redundancy payment in a genuine redundancy situation, and non-contractual ex-gratia payments for loss of office or employment.  These may also include a non-contractual payment in lieu of notice.  However, if any Employer has a history of making non contractual payments which the Employee would reasonably expect to receive, these may be considered by the Inland Revue to be taxable earnings.  For example where the Employer makes a non contractual payment of notice but nevertheless makes a deduction in respect of tax and national insurance.

This is a difficult, complex and changing area of law that requires specific advice.

Where there is a dispute between an Employer and an Employee which could lead to litigation, either party may try and reach a settlement with the other by making an offer to settle ‘without prejudice’.  The words ‘without prejudice’ mean without loss of any rights.  This means that the parties may conduct negotiations with a view to settling the dispute without fear that the contents of the discussions or correspondence marked ‘without prejudice’ would be disclosed to an Employment Tribunal or Court.

Ultimately, the Employee is responsible. However, the Employer often provides a contribution toward the legal fees which may or may not be sufficient to cover the costs. The Employee should check with the solicitor. An invoice is made out in the name of the Employee but made payable by the Employer and this is sent direct to the Employer.

The solicitor may advise him or her to negotiate with the Employer or may do this on the Employee’s behalf.

The solicitor will provide advice on the Employee’s rights and the terms of the agreement based on the information provided.

It is proof that the Employee has obtained independent legal advice. Only relevant independent advisers are permitted to provide the advice such as qualified lawyers, independent trade union officials certified to provide advice or advice centre workers certified as being competent to provide advice.

Only if he or she can reach agreement with the Employer.

A settlement agreement is a binding legal document between an [ex-] Employer and an [ex-] Employee. It records the terms of departure and often includes an additional payment in consideration of the Employee compromising any employment claims. It must conform to the requirements of the Employment Rights Act 1996 otherwise it will not be binding. It is therefore important for it to be drafted by a competent person such a solicitor with expertise in employment law.

Terms and Conditions of Employment

These must be provided by the Employer by the end of the second month of employment.  This is known as the Principle Statement of Terms and covers the terms and conditions relating to holiday pay, working hours, the Employees job title, place of work, the Employer’s address etc.

It is generally speaking good practice for an Employer to consult with Employees before introducing changes especially where they are detrimental to the Employees.  In a situation where the Employees may not agree and the Employer is seeking to impose the change, failure to consult could lead to a successful constructive/unfair dismissal claim.  Consultation should be with individuals.  Where there are 20 or more Employees affected there may be a requirement to consult representatives.  There is also a requirement to consult with representatives where contract change follows certain business transfers or changes in contractor.

The general principle is that both parties to a contract have to agree to a change.  The best evidence will be a written agreement.  Often changes will be made such as the introduction of a pay rise and there will be no written agreement to this but the parties will be seen to have accepted it by their actions i.e. the Employer paying the new sum and the Employee accepting it.  If there are detrimental changes to the Contract of Employment an Employer should seek the Employee’s consent.  The fact that the Employee has not protested will not in all cases mean that the change is accepted, especially where it is a change having little or immediate impact on the Employee.  In some circumstances such as where there is a transfer of a business there are special restrictions on the ability of the Employer to change the Contract of Employment of the Employee if the reason is related to the transfer.

A contract may contain an express power to change a contract term or refer to a special arrangement such as a collective agreement with a Trade Union which allows for changes to be made.  Sometimes a contract will allow for a change in the rate of pay in certain specific circumstances.  However, general clauses providing flexibility will be unlikely to give an Employer a free hand to make any change to a contract that they wish.

In many cases imposing a change in this way can give rise to what is known as a constructive dismissal and lead to a claim by the Employee also for unfair dismissal. However, whether the Employee has a valid claim for constructive/unfair dismissal will depend on the circumstances. If there is a strong business reason for the change and this outweighs the inconvenience to the Employee the imposed change will not amount to a constructive dismissal provided an appropriate procedure is also followed. Where the Employer has an overwhelming business need they should go through a process of consultation and try to seek the agreement of Employees but if there are still some who do not agree to the changes the Employer may dismiss and re-engage the remaining Employees. Whether this will amount to an unfair dismissal will depend on the strength of the business need in comparison to the inconvenience of the Employees and other circumstances including the procedure followed.

Transfer of Undertakings

There is a right of an Employee to object to being transferred.  Save in exceptional cases, the objection to a transfer will restrict the rights of the Employee to take a claim against the outgoing or new Employer.

An Employer can only change terms and conditions of employment for a reason related to the transfer if there is an economic, technical and organisational reason for this.  It would also be advisable for an Employer to follow a correct procedure including consultation with Employees and their representatives in such a situation.  Failure to consult could lead to the dismissal being unfair even if there were an economical, technical or organisational reason.  The normal rules concerning the variation of contracts (dealt with elsewhere under Frequently Asked Questions) would also apply.

The effect of TUPE is to transfer all the rights, duties and obligations of
Employees under or in relation to their Contracts of Employment.  This means that the contract terms will automatically remain the same.   There is one exception to this which is pension rights where protection is provided but this is limited.

There is a requirement for the Employer to inform the Employees of the legal, social and economic implications of a TUPE transfer.  If the Employer intends to take any measures in respect of any Employee there must also be consultation.  The consultation must be with Employee representatives. There are special rules concerning the validity of representatives.

The general position is that a dismissal for a reason related to a TUPE transfer is automatically unfair. This means that an Employee who has the required qualifying service of one year to claim unfair dismissal will be able to do so successfully if the reason is related to the transfer. There is a potentially fair basis for a dismissal where there is an economic, technical or organisational reason which requires a change in the workforce. All the circumstances and the procedure followed would also have to be fair.

Unfair Dismissal

Whether there is a genuine redundancy a dismissal of an Employee is potentially fair.  However, the Employer would normally be expected to consult with the Employee individually, to follow a fair selection process and consider whether there is any suitable alternative employment for the individual before a decision is made to dismiss.  Where there are twenty or more Employees there has to be consultation with Employee representatives as well as notification of the Secretary of State.

Constructive dismissal occurs when the Employer commits a fundamental breach of the contract and the Employee resigns without undue delay in response to this.  The Employee should submit a grievance before making a claim to the tribunal but this is not strictly necessary. It is possible that the conduct complained of is of an unlawful nature under the discrimination legislation.  This could mean an additional claim is made in the employment tribunal.

In the case of long-term ill health there will come a time when it is reasonable for the Employer to consider dismissal.  Before dismissing, the Employer would be expected to speak to the Employee about the situation and ascertain the likelihood of a return to work.  It will normally be appropriate to obtain a medical report to establish a prognosis.  In the event that return is unlikely in the foreseeable future or it is unclear, that may make it fair to dismiss.  In a case in which the Employee falls within the definition of the Equality Act 2010 consideration will have to be made as to whether reasonable adjustments can be made to assist the Employee’s return before a final decision on dismissal is made. In the case of frequent short term absences, a fair dismissal may be possible if the attendance falls well below the required standard for attendance.  It would be expected that the Employee has been given the opportunity to improve and gone through a fair procedure such as the acas procedure.

In most cases of dismissal there will be other procedures which should be followed.  In conduct and capability cases an Employer should also follow their own disciplinary procedure.  In other cases such as redundancy there will be an expectation for there to have been a process of consultation, consideration of alternative work and a fair selection process.

An offence committed outside work may be ground for dismissal if it affects the suitability of the Employer/the Employee to continue in the type of work.  If proper investigations do establish the facts of the case such as a criminal offence involving violence, dishonesty or a sexual offence it would be more likely to justify termination.  A proper procedure would have to be followed such as the acas disciplinary and dismissal procedure.

It is potentially fair to dismiss an Employee for a reason relating to their capability to perform the job or because of their lack of qualifications.  However the Employee must have the problem highlighted to them and the opportunity to improve.  A fair procedure (such as the acas procedure) should be followed including application of the Employer’s capability of disciplinary procedure as appropriate.

In the vast majority of cases it will be unlawful to dismiss an Employee for misconduct without prior warning.  The exception to this is where a very serious offence amounting to gross misconduct such as theft or violence, has been committed.  In any case, there should be a proper investigation of the offence, and a formal hearing convened with a right to appeal against any decision to dismiss.  Employers will be expected to follow their own disciplinary procedure and also the requirements of the acas disciplinary and dismissal procedure.

Until 1 October 2006 Employees over 65 could not claim unfair dismissal.  Although it is still possible to dismiss Employees by reason of retirement when they reach 65 (in most cases), provided a proper procedure is followed, dismissals for other reasons will have to be fair.  In addition, certain particular groups of Employees are excluded from the right to claim unfair dismissal such as share fishermen.

A claim must normally be made within three calendar months less one day of the dismissal.

An Employee has a right not to be unfairly dismissed once they have two year’s continuous service. There are some exceptions to this requirement.