Employee FAQs

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Employee FAQs

A friend has told me I should claim constructive dismissal, but I haven’t heard of it. What is it?

Constructive dismissal is where you resign from your job and claim that you have been dismissed. You effectively ‘construct’ a dismissal out of your resignation. You can do this if your employer has done something so seriously wrong that it amounts to a breach of a fundamental term of your employment contract. 

If you want to claim you have been constructively dismissed, you will first need to prove that your employer breached a fundamental term of your contract of employment. You can rely on any breach by your employer of a fundamental term, such as when your employer doesn’t pay you what you are owed, demotes you or changes your role without good reason. However, the most common breach relied on by employees is a breach of the term of ‘trust and confidence’. This term is implied into your contract and it underpins your employment relationship.  Breaches of this will include where your employer suspends you or disciplines you without good reason or where they harass you or discriminate against you. It’s the sort of behaviour that undermines your relationship with your employer, and which makes it virtually impossible for you to carry on working there. 

Once you can demonstrate that your employer breached a fundamental term of your contract, you will need to show that you resigned as a result of what your employer did. So, when you write to your employer to tell them you’re going, you should include in the letter or email your reason for leaving. This will make it easier for you to link the reason for you leaving to the breach by your employer. Also, you can’t wait too long before you resign otherwise you may inadvertently accept the breach of your contract and not be able to rely on it.   

You should bear in mind that even if you can show that you’ve been constructively dismissed, you will still need to show that it was ‘unfair’ from a legal point of view and that you have been with your employer long enough to make such a claim (usually two years).

Does my employer have to let me change my hours so I can look after my children?

If you’ve worked for your employer for at least 26 weeks, then you have the right to make a flexible working request.  This can include asking your employer to allow you to change your hours or work fewer hours. 

Please note that your right is to ask for flexible working from your employer. It isn’t a right for your request to be granted.  Your employer must look into your request, but they can refuse to let you change your hours if they have a good reason for doing so.

I’ve just started a new job. Does my employer have to give me a contract of employment?

There isn’t any requirement for your employer to give you a written contract. However, on or before your first day your employer needs to give you a statement of the principal terms of your employment. This will set out:

  • Your employer’s name;
  • Your name;
  • Your job title or a description of the work you will be doing;
  • Your start date and any previous work that counts towards your continuous service;
  • How much and how often you get paid;
  • Your work hours and days of work and if and how they may vary;
  • Your holiday entitlement (and if that includes bank/public holidays);
  • Your place of work and whether you might have to relocate;
  • How long your job is expected to last (and what the end date is if it’s a fixed-term contract);
  • How long your probation period is and what conditions are attached to it;
  • Any other benefits you are entitled to (for example, childcare vouchers and lunch);
  • Any training you have to attend and whether or not this is paid for by your employer; and
  • Whether you will need to work abroad for more than a month and, if so: for how long, what currency you will be paid in, any additional benefits you will get and the terms relating to your return to the UK.

On your start date your employer must also give you information about: 

  • Sick pay and procedures;
  • Other paid leave (for example, maternity leave and paternity leave); and
  • Notice periods.

Your employer can do this by putting the information in the principal statement, in separate statements or policies or on their intranet. 

Within two months of your start date, your employer must give you information about your pension; any collective agreements; their disciplinary and grievance procedures and any right you have to non-compulsory training.

How much holiday should I get each year?

By law you’re entitled to at least 5.6 weeks of paid holiday each year. This is a minimum figure so your employer may give you more paid holiday than this. Ideally your contract will tell you how much holiday you’re entitled to, when you can take it and whether there are any restrictions on you taking it. But even if it doesn’t, you’re still entitled to take the minimum amount each year.

The minimum holiday allowance includes an allowance for bank/public holidays. But you don’t have a right to take bank/public holidays as holiday unless your contract says you do.

How much should I get paid while I am on holiday?

Your employer needs to pay you at your normal rate of pay. This should include any usual bonus, commission, overtime or shift pay that you would have expected to get if you were in work rather than on holiday.

Can my employer refuse my request to take holiday?

Yes, they can refuse your holiday request if they need to, for example, because they’re busy other people are already off. They can also cancel holiday that you have already booked, but they’ll need to give you notice if they wish to do this. Their notice will need to be at least twice as long as the period of holiday you have booked. So, for example, if you’ve booked two weeks of holiday, they must give you four weeks’ notice to cancel your holiday.

Your employer should let you take your legal minimum paid holiday each year, so if they refuse your holiday request or cancel your pre-booked holiday, they’ll need to plan when you can take your holiday.

Can I insist on taking bank holidays off?

I am afraid not. It’s a common myth that you are entitled to take bank holidays off. You don’t have any right to do this unless your contract of employment says you can.

Can I carry over any holiday that I don’t use or get paid for it instead?

You don’t have any right to carry over holiday to your next holiday year or to be paid for it instead of taking it. The only exception to this is where you couldn’t take your holiday because, for example, you were on: long-term sick leave, maternity or parental leave. In which case you can carry over your holiday. 

Also, if you couldn’t take your holiday because you were furloughed you will be able to carry over up to four weeks of holiday and use it over your next two leave years.

Your employer should insist that you take at least four weeks of your annual holiday entitlement each year.  However, they can (but they don’t have to) agree with you that you can carry over any holiday you are entitled to over this figure.

How much notice must my employer give me to sack me?

This depends on what on what your contract says and how long you’ve worked for your employer. 

By law, once you’ve been with your employer for a month you’re entitled to a minimum of one week of notice for each completed year you’ve worked for your employer, up to a maximum of 12 weeks. However, if your contract says you’re entitled to more than this then your employer should give you this longer notice. In the first month of your employment your employer can just ask you to leave without giving you any notice.

Additionally, if you’re being sacked for gross misconduct then your employer can dismiss you without giving you any notice at all.

How do I resign?

You need to tell your employer that you are leaving your employment. You can do it verbally or in writing, but the important thing is to make it clear that you’re leaving. Saying that you’re thinking about going or that you may leave is not generally going to be enough to amount to a resignation. You may have a term in your contract of employment saying that you need to give notice in writing, in which case you will need to resign in writing for your notice period to start.

Can I withdraw my resignation?

No, you don’t have a general right to withdraw your resignation. The only real exception to this is if you resigned in the heat of the moment and retract your resignation very quickly. In fact, employers are expected to give their employees a reasonable time to calm down and retract a resignation if they resigned in haste. Your employer can, of course, allow you to withdraw your resignation if they want to even though they don’t have to.

How much notice do I have to give?

This should be set out in your contract of employment and you should follow what that says. Your employer may agree to accept less notice if you ask them, so see what you can agree with them.

If you haven’t got a contract then you need to give one week’s notice unless you’ve been there for less than a month, in which case you can leave immediately.

What is PILON?

PILON is short for pay in lieu of notice and it’s where your employment ends immediately, and you get paid your notice pay without having to work your notice.

What is garden leave?

This is where you’re asked not to attend your workplace or to do any work for your employer during your notice period.  You effectively get to spend time in your garden (but you don’t have to!). 

Your employer can only put you on garden leave if there’s a clause in your contract of employment allowing this or if you agree with them that it will happen. When you’re on garden leave your employer can ask you to take the rest of your holiday, if you have any left. They can also ask you to return to work if they want to as you are still an employee.

I have handed in my notice and my employer wants me to take the rest of my holiday during my notice period. Can they make me?

Yes, it’s likely that they can make you take your holiday during your notice period. If there’s a clause in your employment contract allowing your employer to do this then they just need to follow what’s required in that clause. If you don’t have a written contract or the contract you have doesn’t include such a clause, then your employer will need to give you notice to make you take your holiday. They must give you notice that is at least twice as long as the period of holiday that they want you to take. So, for example, if you have two weeks of holiday left and your employer wants you to take this during your notice period, they must give you four weeks’ notice.

My boss wants to put me into a PIP, what does this mean?

If your employer thinks you’re not performing as well as they would like, they can put you into a PIP. PIP is short for ‘Performance Improvement Plan’ and it’s a process that will be used by your employer to ‘manage’ your performance. The idea is that with guidance, training and regular reviews your performance will get to the level your employer is looking for. 

A good PIP should:

  • Say how your employer thinks you are failing;
  • Explain the improvement your employer expects and how you can demonstrate that you have improved;
  • Set out any training and support your employer is offering;
  • Provide a timetable for your employer to review your performance;
  • Give a deadline by which you need to improve; and
  • Make it clear what will happen if you don’t improve sufficiently for your employer.

My employer is going through a difficult time and they’ve said they may make me redundant. What should I expect?

A redundancy situation occurs where a business needs fewer workers generally, fewer workers doing a certain type of work or fewer workers in a particular place (or a combination of two or more of these). If your employer is going through a hard time and needs to reduce its workforce then this looks like a redundancy situation. 

Your employer should follow a fair process to select any employees who are to be at risk of redundancy and to then consult with those employees about the process and what they’re doing to avoid the need to make redundancies. 

As part of a fair process you should be told how you’ve been selected to be at risk of redundancy and what alternatives to redundancy your employer is considering. For example, with your selection, did your employer ‘pool’ you with other employees or did it just select you to be made redundant? As to the alternatives to redundancy, what did your employer do to try to avoid redundancies. These alternatives to redundancy may include: getting rid of any agency workers first, asking for volunteers for redundancy, considering any vacancies it has and seeing whether you can be retrained into that position. 

Once your employer has considered all its options and gone through its consultation process with you it can then give you notice to make you redundant. Finally, your employer should give you the right to appeal against its decision to make you redundant.

If I am made redundant, how much will I get?

If you’re made redundant you’ll be entitled to a minimum payment of:

  • Your notice pay (one week for each year you have worked there, up to a maximum of 12 weeks); and
  • A redundancy payment based on your age, pay and length of service. You will get half a week’s pay for the years you worked for your employer when you were aged 18-21. One week’s pay for each year when you were aged 22-40 and one and a half week’s pay for those years when you were 41 and over. You can only count your last 20 years of work and a week’s pay will be your pay before deductions up to a maximum of £544.  You can calculate how much your redundancy payment will be by using the government’s online calculator.

These are minimum figures and you may be entitled to more. Your contract may well say that you should get more notice than the minimum amount and some employers have a redundancy policy, which can include a formula for calculating your redundancy payment that could give you more than the basic payment. And, of course, there isn’t anything stopping your employer paying you more if they want to.  This is sometimes known as an ex-gratia payment.

My employer has offered me a settlement agreement – what does this mean for me?

A settlement agreement (sometimes called a compromise agreement) is a legally binding contract between you and your employer. It is normally used when your employment is coming, although it can be used to settle issues while you remain employed by your employer. Usually your employer will agree to pay you more than it needs to (although this may only be a nominal amount) in exchange for you giving up your rights to bring a claim against them. This means that you can end up with a bit more money and your employer has the peace of mind of knowing that you can’t bring a claim against them.

Do I have to take advice on a settlement agreement?

Yes, you do for it to be legally binding. A settlement agreement will usually include a clause that says you give up your rights to make a claim against your employer. As this is such an important right, you have to take advice on the settlement agreement from a relevant adviser, usually a solicitor. In most cases your employer will make a contribution towards your legal costs in getting some advice, which will normally cover most or all of your costs.

What is an NDA?

An NDA is a non-disclosure agreement. It’s a legally binding contract between you and your employer in which you agree to not tell anyone about your employer’s business or something that happened to you at work. Settlement agreements will often include a confidentiality clause, which does the same thing as an NDA.

What is a ‘protected conversation’?

A ‘protected conversation’ is a conversation is a conversation between you and your employer where what is discussed cannot be used in a court or employment tribunal. This allows the parties to talk more freely without the risk of it coming back to bite them later. The good thing about protected conversations is that there doesn’t need to be any sort of existing dispute between the parties for the ‘protection’ to apply. But, on the downside, anything discussed can still be used in any claim for discrimination, so it is not a blanket protection.

What does ‘without prejudice’ mean?

‘Without prejudice’ can apply to any conversations or written communications such as letters, emails and texts. If used properly it means that what is discussed can’t be used as evidence in a court or employment tribunal. This means the parties can talk freely without what they have discussed being used against them. Without prejudice protects private discussions from being used in all types of cases. However, for it to apply there must already be a dispute between the parties. This is different when to ‘protected conversations’ which only offer limited protection, but the parties don’t need to already be in dispute for its protection to apply.

Does my employer have to give me a paid lunch break?

No, your employer doesn’t have to give you a paid lunch break. They do have an obligation to give you a 20 minute rest break if your working day is more than six hours, but they don’t need to pay you for it.

Does my ex-employer have to give me a reference?

No, your ex-employer doesn’t have to give you a reference. The only exception to this rule is if they’ve contractually agreed to give you a reference. This might be because you have a clause in your contract of employment or because it has been agreed as part of a settlement agreement.

What is unfair dismissal?

This is where the termination of your employment isn’t legally fair. You need to have been working for your employer for two years or more to qualify for the right to claim that you’ve been unfairly dismissed. Sometimes you don’t need to have two years of continuous service because you’ve been dismissed for one of the reasons where you don’t need to have the qualifying period of employment. These include where you’ve been dismissed for a reason related to health and safety, blowing the whistle of the working time regulations.

What is a fair dismissal?

To fairly dismiss you your employer will need to make sure that the reason you were dismissed falls within one of the five potentially fair reasons for dismissal. These reasons are: capability or qualification; conduct, redundancy; because you would break the law if you continued to employ that employee; and some other substantial reason. 

Once your employer has chosen their reason for dismissing you, they must then follow a fair procedure to dismiss you. The procedure that they should follow will depend on the reason for your dismissal. So, for example, if they’re making you redundant, they’ll need to look at how to select you for redundancy, consider any alternatives to making you redundant and consult with you. Or, if they are dismissing you because of your conduct, they’ll need to make sure they investigate the allegation thoroughly, let you explain what happened and then consider whether the misconduct was something they should sack you for.

Still Need Help?

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