FAQs about Employment Law

Disciplinary Process Tips

With any disciplinary investigation it is important to be very organised and to bear in mind and record issues including the following :-

  • Always check your business own procedures (if any) which are in place and stick to them
  • Make sure the employee is given appropriate notice of any allegations and the right to be accompanied to any meeting by a colleague or Trade Union Representative
  • Time, date, place and who is in attendance for any meetings.
  • Clear record of the questions put to the employee or witness and any documents or items shown to them
  • Accurate records of the answers to any questions.
  • If a warning is given regarding performance, a further review date and stipulations about necessary improvements should be communicated together with sanctions if improvement does not happen.
  • Make clear  in writing, when imposing any disciplinary sanction the right to appeal and procedure for appealing.
  • With any meeting notes ensure the witness checks the notes and agrees they are accurate and signs and dates each page.

What’s the position on costs in the Employment Tribunal ?

There is no cost for making a claim to an Employment Tribunal.

However, if the Employment Tribunal thinks that the eitehr party has behaved ‘unreasonably, vexatiously, or abusively’ during the case, it can order costs  for a fixed sum of up to £10,000 or order that costs be subject to a detailed assessment by a county court, in which case costs awarded may exceed £10,000.

A claim is “vexatious” if, for example, it is brought by an employee simply to spite his or her employer. In case of “unreasonable” conduct, the Employment Tribunal has a wide discretion in deciding whether this test has been met. There is no need for the tribunal to make a link between the conduct of the paying party and any costs actually incurred by the receiving party.

Restrictive covenants

In order to impose a restrictive covenant, an employer must have a legitimate business interest. Different factors determine whether the restrictive covenant is reasonable, such as nature of business. The covenant will be unenforceable if it imposes greater restrictions than necessary.

Employees cannot be restricted from utilising their skills, knowledge and experience gained while in employment. However, they may be restricted from using their knowledge of trade secrets or confidential information.

  • All restrictive covenants must be created according to each individual’s circumstances.
  • Restrictive covenants cannot be enforced if the employer breached the employee’s employment contract (i.e. wrongful or constructive dismissal).

Imposing covenants

  • It is possible to implement restrictive covenants after the contract of employment has been signed. The employee must be informed of the nature of the business interest to be protected and the employee must be allowed for taking legal advice.
  • In the event that an employee does not accept them, his contact of employment can be terminated.
  • They can be included as part of an agreed termination package.

What can be protected?

  • Legitimate business interests:
  • trade secrets, confidential information,  connections, clients and suppliers

Types of restrictive covenants in employment

  • The employee can be restricted to:
  • disclose or use confidential information
  • work for another business (competition)
  • soliciting the employer’s customers/suppliers
  • contacting the employer’s customers, suppliers or employees

What should an employer deal with long term absence ?

  • Keep in touch with the employee.
  • If their condition improves consider if they can return to work.
  • If they can return, consider offering them suitable alternative employment.
  • Ask for information from the employee’s doctor (although be very careful that this is done through the employee who may or may not co-operate) and take into account what the medical practitioner says.
  • Subject to employee co-operation, consider obtaining a medical opinion from an Occupational Health Consultant.

Can an employee be dismissed for long term absenteeism?

This can be legitimate legally on the grounds of incapability to do his or her job but it is crucial to deal with such a situation in the correct way, failing which a Tribunal claim may be brought and these types of claim can be very expensive. In considering any dismissal the employer must adopt a fair procedure in all the circumstances.

What steps might constitute a fair procedure before dismissal for long term sickness absence ?

  • Check your company’s employment contracts, staff handbook and any policies & procedures and comply with them
  • Check how similar situations may have been dealt with in the past and act consistently
  • Document everything
  • Consult with the employee
  • Take steps to obtain the employee’s consent to assess his or her medical position
  • Assess whether the employee may be classified as disabled under the Disability discrimination Act
  • Consider the employee’s opinion
  • Consider the possibility of offering alternative employment

If an employee has any physical or mental impairment which has or is likely to last for a long period of time, and has substantial or long term effects on their ability to carry out their normal day to day activities the employee may be considered disabled for the purpose of the Disability Discrimination Act, and this should also be taken into account. If ignored, it can give rise to further claims.

Where to now ?