The Basics

• What are the five potentially fair reasons for dismissal?
• What is the minimum notice an employee should receive on dismissal?
• What is the minimum notice an employee should give to an employer?
• What does redundancy occur?
• How much redundancy pay is an employee entitled to receive?
• When is an employee entitled to make a claim for unfair dismissal?
• How much can an employee be awarded for unfair dismissal?
• What is constructive dismissal?
• What is the National Minimum Wage?
• What are the statutory minimum holiday entitlements for a full time worker?
• What is the normal maximum amount of hours a worker can work?
• What is statutory sick pay?
• When is a female employee entitled to maternity leave?
• When is an employee entitled to paternity leave?
• What is parental leave?

 

What are the five potentially fair reasons for dismissal?

1. In relation to an employee's conduct;
2. In relation to an employee's capability or qualifications;
3. Redundancy;
4. Illegality, for example, as a result of an employee’s immigration status;
5. “Some other substantial reason" (SOSR). For example, the dismissal of a temporary employee to allow for the return of an employee who has been on maternity leave is likely to be a dismissal for SOSR.

Automatic retirement at 65 is now potentially unfair and will only be able to be justified in very limited circumstances.

 

What is the minimum notice an employee is entitled to receive when being dismissed?

Unless a contract stipulates a longer period, the minimum period of notice required to terminate a contract of employment is as follows:

• Employees with continuous employment of a least one month but less than two complete years are entitled to at least one week's notice from an employer.
• Employees with two complete years' continuous employment or more are entitled to one week's notice for each complete year, up to a maximum of 12 weeks' notice after 12 years.

 

What is the minimum notice an employee should give to an employer?

Unless a contract stipulates a longer period the minimum notice to be given by an employee, with at least one month's continuous employment, is one week.

 

When does redundancy occur?

A need to make redundancies can be quite common in a period of business downturn and can result from the following:

• a whole business closure;
• a workplace or site closure; and/or
• reduction or cessation in the requirement for employees to carry out work of a particular kind.

 

How much redundancy pay is an employee entitled to receive?

The amount of statutory redundancy pay to which an employee is entitled depends on their age, how long they have worked for their employer, and their pay which is subject to a statutory maximum. The current maximum award for redundancy claims is £12,900.  Where the employment ended prior to 1 February 2012 the maximum is £12,000.  The entitlement is calculated as follows:

• One and a half weeks’ pay for each complete year of service after the age of 41;
• One week’s pay for each complete year of service between the ages of 22 and 40;
• Half a week’s pay for each complete year of service under the age of 22.

However, a week’s pay is subject to a maximum cap, which currently stands at £430, with effect from 1 February 2012.  Where the employment ended prior to 1 February 2012 the cap is £400. The amount of service that can be taken into account is also subject to a cap of 20 years.

 

When is an employee entitled to make a claim for unfair dismissal?

To bring a claim for unfair dismissal, an individual must be both an employee and have at least one year's service. There are exceptions to this general rule whereby no qualifying period is required, these include where the dismissal is:

• Connected with pregnancy, childbirth, or statutory maternity, paternity, adoption, parental or dependant care leave;
• For asserting a statutory right;
• Connected with an application for flexible working;
• Related to the national minimum wage;
• Related to status as a part time worker;
• Related to status as a fixed term employee;
• In connection with trade union recognition, membership or non-membership;
• For making a protected disclosure (“whistle blowing”).

 

How much can an employee be awarded for unfair dismissal?

In most cases, where an employee has been held to have been unfairly dismissed, the remedy will be an award of compensation. This will be made up of a ‘Basic Award’ and a ‘Compensatory Award’.

 

The Basic Award

The Basic Award is designed to compensate an employee for loss of job security and is calculated according to a formula based on the employee’s age, length of service and weekly pay subject to a statutory maximum. For claims where the termination date is on or after 1 February 2012 the maximum award is £12,900. Where the employment ended prior to 1 February 2012 the maximum is £12,000. The Basic Award is calculated as follows:

• One and a half week's pay for each complete year of service after the age of 41
• One week's pay for each complete year of service between the ages of 22 and 40
• Half a week's pay for each complete year of service under the age of 22

However, a week’s pay is subject to a maximum cap, which currently stands at £430, with effect from 1 February 2012.  Where the employment ended prior to 1 February 2012 the cap is £400. The amount of service that can be taken into account is also subject to a cap of 20 years.

 

The Compensatory Award

The amount of the Compensatory Award will, subject to a statutory limit, be such amount as the Employment Tribunal considers just and equitable in all the circumstances. This limit is currently set at £72,300 for claims where the termination date is on or after 1 February 2012.  Where the termination date falls prior to 1 February 2012 the maximum is £68,400.

There is no limit on the Compensatory Award for unfair dismissal where the employee is dismissed unfairly for reasons connected with discrimination, health and safety matters or a public interest disclosure ("whistle blowing").

 

What is constructive dismissal?

It is for an employee to claim constructive unfair dismissal when they have resigned, but feel they had no choice but to do so. In order to convince an Employment Tribunal that they were constructively dismissed an employee will have to establish the following:

1. There was a contract of employment.
2. The employer had committed a fundamental breach of the terms of that contract.
3. Such a breach was repudiatory and justified the employee resigning in response to the breach.
4. The employee did resign in response to the breach.

 

What is the National Minimum Wage?

The current hourly rates (since 1 October 2011) are as follows:

• Apprentices (under 19 years or aged 19 or over in the first year of apprenticeship) - £2.60
• Young workers rate: Workers aged 16 and 17 - £3.68
• Development rate: Workers aged 18 to 20 - £4.98 
• Standard (adult) rate: Workers aged 21 or over - £6.08

 

What are the statutory minimum holiday entitlements for a full time worker?

5.6 weeks per year inclusive of bank and public holidays.

 

What is the normal maximum amount of hours a worker can work?

The Working Time Regulations 1998 impose a maximum limit of 48 hours per week, averaged over a 17 week period, on workers' hours of work for the majority of working situations.

In the UK, workers can opt out of the 48 hours limitation, provided they do so in writing. Subject to giving proper notice a worker can decide to end the opt out and return to being subject to the limitations.

 

What is statutory sick pay?

Statutory Sick Pay (SSP) is payable by employers to qualifying employees who are off sick for four or more days in a row. It is not payable for the first three days in any period of entitlement but thereafter is payable for up to 28 weeks.

 

When is a female employee entitled to maternity leave? 

Any female employee is entitled to up to 52 weeks’ maternity leave regardless of length of service.

 

When is an employee entitled to paternity leave?

In order to be eligible for paternity leave an employee must:

• be continuously employed by their employer for at least 26 weeks before the expected week of childbirth; and
• be either the father of the child, or the spouse, civil partner or Partner of the child’s mother; and
• have or expect to have responsibility for the upbringing of the child.

Paternity leave must be for the purpose of caring for the child or supporting the mother of the child in caring for the child.

Paternity leave is divided into two parts – Ordinary Paternity Leave (OPL) and Additional Paternity Leave (APL).

Provided the employee is eligible, they are entitled to take either one week or two continuous weeks paternity leave within the first 56 days of the date of childbirth or, in adoption cases, within 56 days of the child's placement. This is OPL.

For babies due on or after 3 April 2011, eligible employees are entitled to additional paternity leave (APL).

APL must be taken as multiples of complete weeks and as one period. The minimum amount of APL that can be taken is two weeks and the maximum is 26 weeks. APL must be taken in the period beginning 20 weeks after the child's date of birth, or adoption placement, and ending 12 months after that date of birth or adoption.

 

What is parental leave?

Since 1999 employees have had the right to take a reasonable amount of time off work in order to take necessary action to deal with particular situations affecting their dependants and to make any necessary long-term arrangements. These situations include:

• To make longer term care arrangements for care of a dependant who is ill or injured;
• To deal with the consequences of the death of a dependant;
• To deal with the unexpected disruption, termination or breakdown of arrangements for the care of a dependant;
• To deal with an unexpected incident which involves the employee’s child during school hours.

The right is available only to employees and is irrespective length of service or if the employee works full time or part time or is employed on a permanent, temporary or fixed term basis. The leave is usually unpaid.