What is unfair dismissal and how does it differ from fair dismissal?

Generally, an employee who has completed the applicable qualifying period of service has the right not to be unfairly dismissed.  For these purposes, the employee must have been dismissed in one of three ways: termination by the employer, expiry of a limited-term contract or constructive dismissal (section 95(1), ERA 1996.

The dismissal of a qualifying employee will be unfair unless:

  • The employer can show that the reason (or principal reason) for the dismissal was one of the five potentially fair reasons (section 98(1) and (2), ERA 1996.
  • The tribunal finds that, in all the circumstances (including the employer’s size and administrative resources) the employer acted reasonably in treating that reason as a sufficient reason for dismissal (section 98(4), ERA 1996.

In cases of misconduct or poor performance, the Acas Code of Practice on Disciplinary and Grievance Procedures (Acas Code) sets out recommendations as to the procedure employers should adopt prior to dismissing an employee. Tribunals must take the Acas Code into account when deciding whether an employer has acted reasonably.

Dismissals for certain reasons are deemed automatically unfair and, in most such cases, employees do not need a qualifying period of employment.

If an employment tribunal finds that the dismissal is unfair, it can order the employer to re-engage or reinstate the employee or (as is more likely in practice) pay the employee compensation.

Dismissing an employee is never a nice process for an employer, but it’s important to know the difference between fair and unfair dismissal. If a disgruntled employee feels as though their dismissal was unfair, they could take legal action against you and make an employment tribunal claim if they have been employed with you for longer than 2 years. In this guide, we’ll be defining both fair and unfair dismissal including how they are different. Additionally, we’ll discuss how using an employment law advisory service for businesses UK like us can benefit you.

What is fair dismissal?

According to the Employment Rights Act 1996 there are five possible reasons for a fair dismissal. These are:

  • Their conduct – the employee has acted in a way that is unacceptable or inappropriate. This could include particularly serious behaviour like fraud, theft, bullying, or negligence. It can be one big incident that requires immediate dismissal (called gross misconduct). Or it might be the result of several smaller problems like regularly being late for work.
  • Their capability – if the employee has proven unable to do their job or doesn’t have the necessary qualifications for it. Examples of this may be long-term absence or if they aren’t performing to an expected level for the role.
  • A legal reason or statutory restriction – if the employee can’t carry out their work legally and continuing to employ them would mean your business is breaking the law. For example, if a lorry driver no longer had their license and was banned from driving.
  • Redundancy – when there is no longer a need for that job role within your business such as if the business is closing or downsizing.
  • ‘Some other substantial reason’ – there could be various specific circumstances that warrant a fair dismissal, which is why this category exists. It might be that your reason for dismissal doesn’t fit into any of the other categories (for example the employee is given a long prison sentence, their fixed term contract is coming to an end, or they refuse to accept new terms in their employment contract).

A dismissal will be held to be fair if:

  • The employer shows that the reason (or principal reason) for the dismissal was one of the five potentially fair reasons for dismissal (section 98(1) and (2), ERA 1996). Identifying the reason for dismissal is considered in The reason for dismissal and Potentially fair reasons for dismissal.
  • The tribunal finds that, in all the circumstances (including the employer’s size and administrative resources) the employer acted reasonably in treating that reason as a sufficient reason for dismissal (section 98(4), ERA 1996)

However, there is a process to a fair dismissal. Not only does an employer need a valid reason to dismiss, but they also have to prove that they acted in the right way in accordance with the process. As well as in a way that is suitable for the circumstances at hand. If you’re unsure whether your dismissal is fair or if you have acted in the best possible way, you should seek expert HR advice for employers from ELS.

What process for fair dismissal should employers follow?

If the situation reaches an Employment Tribunal, they will consider various factors when deciding whether the dismissal was fair, and the employer acted reasonably. They will check whether the employer:

  • Thoroughly investigated the problems and accounted for mitigating circumstances that might have been affecting the employee.
  • Documented the issues in writing and informed them of the possibility of their dismissal.
  • Carried out a disciplinary hearing with the employee, allowing them a chance to respond.
  • Ensuring the employee knows that they can be accompanied to any hearings.
  • Letting the employee know of the decision to dismiss them in writing and giving them opportunity to appeal that decision.


In addition, the Tribunal will look at whether the decision fits within one of the above category for a fair dismissal and weigh up other questions. Did the employer inform the employee of expected standards of conduct and performance? Could the employee be expected to understand what the consequences of their behaviour would be? Has the employer’s policy been used in a fair and consistent way? i.e., were similar problems dealt with in the same way in the past?

Proving a dismissal was fair has to be evidenced in a clear and unquestionable way. However, it can be easy for a fair dismissal to be rendered unfair if the employee has certain characteristics, even if the employer has acted in the most suitable way and followed the process responsibly.

What is unfair dismissal and how is it different from fair dismissal?

Understanding what unfair dismissal is, is essential for any employer. Different rights can apply based on the specific circumstances of the business and dismissal. For example, it will likely be considered unfair dismissal if an employee has worked for the employer for at least 2 years and:

  • There wasn’t a fair reason (as listed above) for the dismissal.
  • The reason being given by the employer was not substantial enough to support the decision of dismissal.
  • A fair procedure was not followed by the employer.

In cases where employees have been dismissed before they have worked for their employer for 2 years, their rights can be a bit different. This can be referred to as ‘short service dismissal’ and depending on the reason why the employee is being let go, automatically unfair dismissal or wrongful dismissal could apply.

Automatically unfair dismissal

There are some reasons for dismissal that are deemed to be automatically unfair under the Employment Rights Act 1996. This means that if an employer tries to use them as the main reason for dismissal, there is no question that it is an instance of unfair dismissal. This can apply to any employee whether they have been employed for a minimum of 2 years or not. Automatically unfair reasons for dismissal include:

  • Being pregnant or on maternity leave
  • Completing jury service
  • Asking for something that falls within an employee’s legal rights such as wanting to be paid National Minimum Wage
  • Being a member or representative of a trade union
  • Requesting to take family leave, such as parental, paternity, or adoption leave
  • Making a flexible working request
  • Being part of legal industrial action for 12 weeks or less, e.g., going on strike
  • Having an involvement in whistleblowing
  • Proposing to take action or taking action because of a health and safety concern
  • Taking compulsory retirement (being forced to retire by an employer)

Wrongful dismissal

A dismissal is wrongful when an employer has breached an employee’s contract. Wrongful dismissal is often in relation to notice, or notice pay, such as dismissing an employee without giving them a notice period or notice pay. Another example is not giving an employee the full notice period they have an entitlement to. Again, it doesn’t matter how long an employee has worked for the company. Anyone can make a claim for wrongful dismissal if they feel it is justified.

Who can claim unfair dismissal?

The right to bring a claim for unfair dismissal is available only to an employee who has been dismissed and who, in most cases, has the requisite qualifying period of service, currently two years. The qualifying period does not apply in most cases where the dismissal is for an automatically unfair reason.

The employee’s work must also have been done in Great Britain or must have a sufficient connection to Great Britain to bring the employee within the territorial scope of the ERA 1996.


In many situations, there can be a fine line between fair and unfair dismissal, but as an employer it’s important to know your rights. As well as the procedure you should follow in the event you want to dismiss an employee. If you need support with your HR and understanding employment law, contact us at Employment Law Services (ELS) today. Our team of employment law consultants for employers are on hand to help however we can.


The benefits of outsourcing HR

Human resources – it sounds quite tyrannical. In fact, the HR department is a valuable asset for long-term business health. This is because employees are the lifeblood of any business. What’s more, research has found that the working environment is the most valued factor for employee happiness. As such, its important employers ensure they have adequate resources devoted to HR.

In this blog we’ll be going over the role of HR in businesses, and how outsourcing to experts like Employment Law Services (ELS) LTD allows employers to stay on top of their responsibilities.


The importance of HR for businesses

The goal of HR is to manage and support employees over the course of their life cycle. It’s therefore responsible for finding, screening, recruiting, and training applicants. Additional roles include administration, aiding in budget control, and conflict resolution.

Human resources also help shape and maintain company culture. This is because its activities impact employees at all levels of the business, including the owner. Creating a positive workplace environment takes constant attention, which HR outsourcing helps achieve.

The nature of a business’s HR responsibilities is characterised by the work done by its employees, as well as its size. For instance, many SMEs don’t have a dedicated HR department due to the number of people employed by the business. However, owners that take on HR roles themselves risk of failing to uphold legal requirements. Employment Law Services can provide qualified advice and support to business owners and managers, even if the business doesn’t have a HR function.


Why outsource HR?

Small and medium sized businesses can grow quickly, leading to the employment of more and more workers. During this process it can become too much for leaders to manage employee wellbeing alongside their other duties.

If you’re an employer considering whether to outsource HR, you should assess your current HR responsibilities. Are they detracting from profitable action? Do they require specialist skills and training? Does it mainly consist of temporary recurring tasks? If even one of these answers comes back as a yes, the business could benefit from outsourcing its HR.

Ensure legal compliance

Employment and labour laws are complex, with the ability for corner case scenarios to arise. It typically takes members from multiple in-house HR teams to formulate a policy that covers all areas. An external HR department can act as an employment law helpline for employers, constantly monitoring changes to employment law.

This is important as failure to comply can open the business up to claims, which can damage its reputation. This is alongside potential financial consequences too. Outsourcing helps avoid costly mistakes as there’s less pressure on HR administrators.

Time and resource savings

Outsourcing HR gives employers and managers more time to oversee key operations. This lets employers focus on improving business efficiency and facilitates vertical relationships. It also helps simplify time consuming procedures like payroll and benefits packages.

Improved information gathering

Using the most advanced and up-to-date employee management tools can be expensive. However, third party HR companies will employ these technologies and offer their benefits to your business. Employment Law Services (ELS) LTD can provide customers with comprehensive human capital metrics to measure performance and ensure company policy is being upheld.

Access HR expertise

Managing employee needs takes a great deal of experience and nuance. This is furthered by the range of responsibilities that fall within HR. For example, an employer with an accountancy background might be well suited to payroll duties but unable to deal with workplace disputes. Outsourcing gives a business access to expertise in all areas of HR.


Options for outsourcing HR

There are different outsourcing options for businesses looking for HR advice and support. These vary depending on the scope of processes that can be outsourced, along with the specific functions covered. As such, the choice will be guided by the needs of the business. Options for outsourcing HR functions are:

  • Human Resources Outsourcing (HRO) – sometimes called Business Process Outsourcing (BPO), this involves employing a subcontractor to take over HR function to any degree.
  • Administrative Service Offering (ASO) – outsourcing administrative HR functions like worker’s compensation, payroll, employee benefits, HR management, and safety programmes.
  • Independent contractors – an individual that helps the company build their HR function without being employed. Independent contractors aren’t given full-time work either, instead they’re commonly on a retainer.
  • Staffing companies – agencies that help source candidates for new roles. These companies work with the business during the recruitment stage of an employees’ lifecycle. They aren’t concerned with the benefits aspect of HR.
  • Professional Employer Organisation (PEO) – companies that provide an outsourced solution for HR management. They form a joint employment agreement, meaning the PEO becomes the employer of record. As a result, a PEO can manage and perform more complex HR functions. This includes health benefits, payroll tax compliance, paid time off, leaves of absence, workers’ compensation and insurance claims.


Employment law services for businesses

Looking for clarity on how employment law affects HR in your business? The team at Employment Law Services (ELS) LTD is ready to provide expert HR advice for employers. We help by shouldering HR responsibilities with professionalism. Access a free consultation and we’ll help you take care of your employees.


Contact us today.

How to deal with workplace bullying effectively?

The workplace is where many of us spend a large portion of our lives. Unfortunately, the reality is that bullying doesn’t disappear once we leave education. It’s not something employers can quantify and address in the same way as other business areas. However, bullying most certainly is something that has to be dealt with effectively.

In this blog we’ll discuss why workplace bullying arises, how to spot it, and how best to deal with it.


Identifying workplace bullying

Workplace bullying can be a difficult pill to swallow for employers. They might not be looking out for the signs. It can also be hard for employers to notice unless they’re physically close to employees on a regular basis. Generally speaking, the bigger an organisation is the harder it is to monitor. It’s therefore important to make sure measures are in place to identify workplace bullying early on.

Bullying can broadly be defined by persistent negative behaviour that targets an individual.  However, the challenge is that it can manifest in many ways. For example, bullying doesn’t have to be solely physical or verbal abuse. It can also occur in-person or through online channels. Bullying can include:

  • Belittling – when someone doesn’t have their contributions taken seriously. Belittling can also be undue criticism from colleagues.
  • Name calling – it could be a name that relates to the person’s actual name, their appearance, culture, gender, or something else altogether. Whatever the case, the intention is to cause discomfort.
  • Exclusionary behaviour – actions that isolate someone and make them feel ignored.
  • Spreading rumours – falsehoods based on someone’s actions or personality that are circulated among employees.
  • Scapegoating – blaming an individual for mistakes the aren’t wholly responsible for. In cases where one person may be responsible, jumping on them immediately can be seen as scapegoating.
  • Patronising – behaviour that appears outwardly friendly but in reality, creates a sense of superiority. One way this type of bullying can occur is by one person constantly being assigned menial or pointless tasks.


Effects of workplace bullying

Preventing workplace bullying falls within the bounds of employee health care. As such, it’s within an employer’s duty of care to try and prevent workplace bullying. Aside from decreasing motivation and engagement, there are real health risks associated with workplace bullying. Those affected can develop a range of psychological issues. Even people who aren’t the primary target of bullying can be impacted. Witnessing bullying can still cause some trauma. Problems include:

  • Stress
  • Blood pressure complications
  • Loss of sleep
  • Mood swings
  • Anxiety
  • Low self-esteem and confidence
  • Depression

It’s also been shown that employees being bullied at work can experience physical symptoms. Examples include loss of appetite, headaches, and increased muscle tension. One paper even found that workers that had been bullied were 59% more likely to develop heart-related illness. This, combined with the mental effects, distract workers from doing their jobs to the best of their abilities.

Bullying affects the nature of the workplace itself. People that are affected may develop habits to avoid bullies, which damages efficiency. Employers may see drops in productivity, increases in absenteeism, and the rise of costly legal issues.


How to deal with workplace bullying

Once you’ve identified one or more employees committing workplace bullying, what should you do? Depending on the severity of the bullying, employers might not want to outright dismiss perpetrators. This can potentially cause more damage to the overall company environment.

There are many options for businesses to deal with workplace bullying. Here are our steps for employers that have been made aware of workplace bullying, either formally or informally.

Talk to the suspected victim

Gain a full understanding of the issue and what has happened. At this point, employers should try to understand if the accusation of bullying is true. This will gather relevant information that can be used further down the line, especially if legal action is brought against the bully.

Agree an approach

Discuss how they would like the situation to be handled. The employee may want to keep it quiet, want advice, a written statement apology, to try mediation, or to make a formal complaint. Alternatively, they may want to be moved to a different role. For mediation, employment law services for businesses can serve as a valid third party. All these options should be made clear to the affected employee.

The challenge for employers is reaching an agreement on what should be done. As an employer, you may feel as though the person’s proposed course of action isn’t appropriate. It could be a conflict of interest, or they could understandably be acting emotionally. Whatever the case, employers should try and agree an approach that works best for both parties, whether it’s formal or informal.

Support the individual

Make them aware of any available resources that can offer support. These can be:

  • Counselling – either through an employee assistance programme (EAP), or other means provided by the employer.
  • Staff support networks.
  • Trade union advice.
  • Internal support workers – those responsible for encouraging a fair staff treatment in the workplace.
  • Specialist anti-bullying and harassment support organisations or charities.

Review your policy

Every instance of unrest in the workplace, while unfortunate, is an opportunity to learn. It’s worth sitting down with your HR team and reviewing the scenario, how it was handled, and what process was followed. There can be different policies that relate to different types of bullying – was the most relevant procedure used in this instance? Employers can use reviews to make improvements to workplace wellbeing policies over time.

As an employer you’re responsible for preventing bullying and harassment. There is a difference between the two, as the latter is illegal under the Equality Act 2010. According to the UK government, harassment is unwanted behaviour relating to:

  • Race
  • Age
  • Sex
  • Gender reassignment
  • Sexual orientation
  • Religion
  • Marriage or civil partnership
  • Pregnancy and maternity


Tips for preventing workplace bullying

Even if your company culture is overwhelmingly positive, there could be factors that are contributing to a rise of workplace bullying. It might be design features, work tools, noises, or other environmental factors.

It may also be the case that people are bringing in issues from outside the workplace. For instance, in relation to their living situation or personal life. Although this aspect is out of your control, the best way to prevent workplace bullying is by creating an enjoyable work environment.

Reduce workplace stressors

Managing the stress levels of employees can have many benefits for employers. For example, increased morale and productivity. However, it can also help prevent bullying behaviour, as stress is often a factor in people lashing out at others.

Train staff

Ensure all workers are aware of what bullying looks like and how it can affect others. This allows employees to recognise when it’s happening, while also demonstrating your commitment to a safe workplace.  We offer a variety of e-Learning courses, including an Anti-Harassment and Bullying course.

Foster strong vertical relationships

Employers should focus on those in leadership roles to help reinforce workplace guidelines and culture. Managers should encourage openness by presenting themselves as people that can be spoken to about workplace conflicts. This employment relationship helps set expectations and influence company culture for the better.

Employers should also be mindful that bullying can come from a variety of sources, including vertically. This is another reason to train managers accordingly.


Employment law for employers UK

Whether you’re looking to establish an anti-bullying procedure or get bullying advice for employers, Employment Law Services can help. Our team have years of experience providing employers with expert advice. By choosing us, you’ll be ensuring your workplace remains safe and inclusive. Book a free consultation and we’ll see what we can do.


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Do most employers settle before tribunal?

The breakdown of relations between an employer and one or more of their workers is never a nice prospect. However, the reality is that it can happen for any number of reasons. When employees are dissatisfied with their employer, they can try and reach an agreement informally or they can resolve the issue through an employment tribunal.

Is one option more preferable than the other for employers? That’s what we’ll be discussing here, while also delving into what’s involved in a tribunal and a settlement respectively.


What is an employment tribunal?

Employment tribunals are judicial public bodies that aim for workplace justice. They are main forums used to decide the outcome of disputes between employers and their employees. Tribunals are held in a range of official offices and venues throughout the UK.

Whilst an employment tribunal isn’t as formal as something like criminal proceedings, it is still a court of law. As such, cases are heard by an employment judge with at least 5 years’ experience post-qualification.

Most cases are decided by an employment judge on their own but in more complex cases, such as discrimination cases, cases might be decided by a panel of 3 people.


Employment tribunal claims

Workers have up to 3 months from the cause of the claim to make it. For instance, if the issue is tied to a loss of employment, this period starts when the individual’s employment ended. There are many reasons why employees might want to make a tribunal claim. This includes:

  • Unfair dismissal
  • Discrimination in the workplace
  • Unreasonable deductions from pay
  • Breach of contract
  • Bullying and harassment
  • Reduced or absent redundancy pay
  • Changes to working environments or hours

These reasons form the basis of the claim and will likely stem from a recurring issue the claimant has experienced in the workplace. In some cases, such as harassment, an isolated incident can trigger a claim. The key stages of the employment tribunal process are:

  • Early Conciliation involving an independent ACAS conciliator who discusses the issues with both parties in an attempt to resolve matters and avoid a tribunal claim being submitted.
  • If Early Conciliation doesn’t resolve the dispute, the employee can submit their claim to the employment tribunal. Someone can do this for themselves, for a group of workers, or as a representative of the claimant.
  • The respondent (the employer) is informed of the claim and has 28 days to respond.
  • Following submission of the response, the tribunal will review the claim and response then decide what happens next.
  • Once the claim and response have been accepted by the tribunal, it will decide how best to progress the case to a final hearing. This may include holding preliminary hearings and the issuing of directions and case management orders.
  • Parties may be asked to provide more information about their cases to assist the tribunal to clarify the claim and/or defence.
  • Both parties will be required to disclose all relevant documents to each other, including documents that support or adversely affect a party’s case.
  • The parties will be required to produce a ‘bundle’ containing all the documents that both parties agree are relevant and which should be considered at the hearing. In many cases, it is agreed that a joint bundle will be produced and more often than not it is the respondent that will be charged with producing the joint bundle.

At the hearing, the tribunal will read the bundle, listen to the evidence from witnesses and make a decision on the outcome. Both the claimant and the respondent can give evidence and all witnesses are subject to cross-examination.


Settling before a full hearing at the employment tribunal

Employment cases can be settled at any time before the final full hearing has taken place, either with the assistance of ACAS conciliation or directly between both parties.  In cases where settlement has been reached, and with the assistance of ACAS, a COT3 Agreement document will record the terms of settlement of an employment tribunal claim and the specific terms of the COT3 Agreement will set out what has been agreed between both parties.

An employment tribunal follows rules and regulations that participants must adhere to. Employers who haven’t been part of a tribunal before could be unprepared. If this is the case, or if you want professional employment tribunal advice for employers, then Employment Law Services (ELS) LTD can help. Other reasons employers settle before going to tribunal include:

Legal costs

An employment tribunal has the potential to incur significant legal costs on the employer. This is because they are often required to cover the employee’s services as well. If they use a solicitor, their legal expenses could reach into thousands of pounds. What’s more, the exact cost of an employment tribunal is unpredicted due to its variable length. It’s often the case that a case that goes to tribunal costs more than paying out a settlement offer.

Time investment

The duration of an employment tribunal lasts from the point ACAS is notified, to when both parties receive the decision. As we covered earlier, various steps in the process involve waiting for documents to be sent and stages to progress. The back and forth between the tribunal and the parties can therefore take a long time. On the other hand, a settlement can be reached within a week.

Less stress

Pursuing a tribunal claim can be stressful for both employers and workers. The formal process includes revisiting unpleasant events, gathering evidence, and hearing witness testimonials. In contrast, settling is usually more informal and straightforward. This allows the dispute to be resolved relatively quickly, sometimes without the need for travel. Removing stress allows employers to retain a measure of goodwill with employees who have felt let down.


Employment tribunal decisions are published online where information about individual cases can be viewed freely. Reporters might target tribunal hearings looking for stories around workplace practices. This can create negative publicity for the company. Whereas most settlement agreements include a confidentiality clause, meaning both parties have agreed not to talk about the dispute.


An employment law expert for employers

Dealing with an employee dispute is a tricky situation for employers to find themselves. However, with the right guidance any business leader can reach an agreement that benefits both parties. At Employment Law Services (ELS) LTD, we provide expert advice for employers’ day-in day-out. Book a free consultation to discuss your dispute with a member of our professional team.

Contact us today.

Government to triple fines for employing illegal workers

On 7 August 2023, the UK government announced the tripling of fines for the employment of illegal workers. The last time this civil penalty was increased was in 2014, with a first-time breach costing £15,000 and repeat breaches costing £20,000. The increase, set to be implemented in early 2024, will see fines rise to £45,000 for first time offences and £60,000 for repeat offences respectively.

The government has said the move is necessary to combat illegal working practices in the UK, reportedly at their highest levels since 2019. Since 2018, the Home Office has recorded around 5,000 civil penalties issued to employers totalling an estimated £88.4 million. This is based on quarterly reports to assess the government’s illegal workers policy.


What employers need to know

It is unlawful to employ someone who does not have the right to reside and the appropriate right to work in the UK or who is working in breach of their conditions of stay.

Currently, those that employ individuals without the right work in the UK can face up to 5 years jail time, in addition to the fines. The regulations also affect landlords who allow illegal migrants to rent their properties. However, this only applies in the case the employer/owner has ‘reasonable cause to believe’ someone doesn’t have the right to work in the UK. Examples include:

  • False or incorrect papers
  • Their leave has expired
  • They have not been given permission to do certain types of work
  • They were not granted permission to enter or remain in the UK

If you are found to be in breach of these regulations as an employer, you will be issued a civil penalty notice. This contains details on how you can pay the fine, the next course of action, and what can be done to make an objection. After receiving the notice, employers have 28 days to respond.

In light of these upcoming fine increases, it is therefore advised that employers conduct thorough employee background checks. This allows them to obtain a statutory excuse to the civil liability penalties outlines above.


The individuals caught working illegally are also deemed to be committing a criminal offence. As a result, while their penalties are not as severe as those for employers, they still face consequences. This can include fines, confiscation of wage earnings, and up to 6 months imprisonment.


Conducting right to work checks

It is the responsibility of all UK employers to prevent illegal working. Therefore, reporting an illegal worker should be a step that businesses never reach. This can be avoided by conducting right to work checks on an employee-to-employee basis. While there is official government guidance on how to do this, here is a list of simplified advice:

  • Check the eligibility of all prospective employees prior to their first working day.
  • Conduct follow-up checks on those with UK right to work permissions subject to a time limit.
  • Keep records of what checks were carried out and when. This information should be stored securely so it can be referred to if necessary.
  • Do not employ individuals where it has come to your attention, or you have ‘reasonable cause to believe’, they are an illegal worker.

With the tripling of fines for employers who employ illegal workers, this is now more important than ever. This is because the fines now represent a more significant financial risk to business owners. Therefore, if you’re unsure of anything related to illegal working regulations in the UK, you should seek the advice from employment law professionals.


Avoiding claims of discrimination

To avoid claims for discrimination, employers should carry out appropriate checks on all prospective employees, not merely those who appear to be of non-British descent.  To assist employers, the Home Office issued a Code of Practice, which came into force in May 2014.  This latest version, which applies to employment commencing on or after 6 April 2022 and where a repeat check is required on an existing worker on or after that date, includes changes to further clarify the code of practice, including the meaning of terms used within it, what amounts to unlawful discrimination, and how to avoid discrimination when carrying out right to work checks. There is also additional guidance on fair recruitment processes, including in relation to online checks, and information for employees about employers’ obligations to conduct right to work checks.

If an employer has carried out checks and established that an individual is not permitted to work in the UK, it can refuse to employ that person but failure to observe the code of practice may be taken into account by an employment tribunal in deciding whether there has been discrimination.


Employment law specialists

If you want help with employee right to work checks, contracts, HR policies, and more, look no further than Employment Law Services (ELS) LTD. We offer fixed fee legal solutions for both employees and employers. These are created in consideration of your business, its workers, and the situation. As a result, you can be confident in achieving the desired outcome for your business. Contact us today to book a consultation with members of our expert employment law team.

An employer’s guide to social media in the workplace

Social media is one of the most powerful tools for online communication today. As such, it’s used heavily by consumers and businesses alike. Since employees operate as both these agents, social media can lead to the crossing over of personal and professional lives. Whether they’re posting on behalf of your organisation or merely in association with it, employers should be mindful about how their reputation could be impacted.

Is there a solution? Yes, there are many things employers can do to manage the risks of social media in the workplace. Continue reading for our full guide.


Legal considerations

Social media doesn’t just refer to the use of popular platforms like Facebook and Instagram. Rather, employers must be aware of any internet-based tools employees can use to interact with each other and those outside the company.

Social media has come to the forefront of internet use, with 4.8 billion active users as of April 2023. While this growth has only occurred over the last two decades, there are some older laws that influence how social media is used. The social media laws for employers to be aware of are:

  • The Human Rights Act 1998 – specifically article 8, which states people have a ‘right to respect for their private and family life, home and correspondence’. Article 10 also gives the right to freedom of expression.
  • The Data Protection Act 2018 and UK GDPR – which regulates businesses on how employee and applicant information is collected, handled, and used. This gives individuals the right to access their information and get compensation where necessary.
  • The Malicious Communications Act 1998 – which prevents the sending of communications (including online messages or letters) that convey a threat, grossly offensive or indecent message, or false information, if the intention of the sender is to cause distress or anxiety to the reader or recipient.
  • Section 127 of the Communications Act 2003 – which provides that the use of public electronic communications equipment to send a message that is false, grossly offensive, or of an indecent, obscene or menacing character, will be punishable by either an imprisonment term not exceeding six months, or an unlimited fine, or both. It is also an offence to send a communication through a public network intended to cause annoyance, inconvenience or needless anxiety to the recipient.
  • The Computer Misuse Act 1990 – which prevents the unauthorised access, modification and use of computer material, or the use of a computer to assist in a criminal offence.


Managing social media in the workplace

For employers, some degree social media management is important to protect their business. This is because social media use has the potential to damage a business’s reputation unless there are certain guidelines in place. One reason for this can be workers misusing official accounts. It’s therefore important to first make employees aware of the three main uses of social media:

  • Personal – private life.
  • Professional – use of social media to growth a network of contacts, increase brand visibility, and bring in new business.
  • Official – communications using the brand’s name as a representative.

Although only a few employees might have access to a company’s official social media accounts, many people have a separate work email address. This should be used exclusively for business-related purposes, as the company name is associated with the inbox.

Risks of social media to employers

When employees make posts or comments they shouldn’t, the consequences can be dire. Staff that can’t use and manage their email inbox effectively can be a security risk, for example. Here are the other workplace issues social media can create:

  • Bullying / cyberbullying
  • Loss of brand identity across multiple channels
  • A PR crisis
  • Copyright infringement
  • Disorganisation


One option for employers is to limit the time or scope of social media use at work. However, close monitoring of employee social media use has the potential to create problems for employers. If workers feel like they’re constantly being watched, this can cause trust in management to break down. Even if you explain the reasons behind your actions, it can still result in a loss of privacy.

Furthermore, as mentioned above, there are laws to protect employee freedoms online. Depending on how far an employer’s efforts to manage social media use go, it could be seen as infringing on employee rights. In this case, the employer is open to employment claims.


Workplace social media policy

Businesses of any size can benefit from having a social media policy in place. This creates a framework that can be used to inform procedure and protect the organisation’s reputation. It should provide information to employees on what’s considered acceptable online behaviour. Employers should use their social media policy to establish the disciplinary process, along with what actions will be taken.

A social media policy can also serve to protect employee wellbeing, which is an obligation all employers share. It does this by avoiding negative outcomes like workplace bullying and the sharing of personal information.

Copyright training

A stark difference between personal and professional social media use is the increased risk of copyright. As a result, many employees may not be aware of what to look out for. Employers should therefore provide education on the best copyright practices online. This includes checking information sources for reputability and crediting material sources.

Company guidelines

Social media is a great way for businesses to interact with their audience. It can allow for natural connections that establish what the brand stands for. However, this can be undermined if employees aren’t aware of the company’s brand values when they’re posting online. A social media policy lets employees reference the business’s established content style and tone of voice.

It’s important for employers to be transparent. Social media guidelines make it clear to employees that you’re monitoring social media. This demonstrates your expectations, as well as your commitment to online safety.

Risks of information sharing

Place an emphasis on the risks of sharing confidential and proprietary information. This includes personal information relating to the employee themselves, along with anyone else in the workplace. Employees should be encouraged to consult a colleague before they post anything they’re unsure of.

Some employees may wish to remain absent from social media. Policies can account for this by requiring employees to ask permission before taking and sharing photos.


Employment lawyers for employers

If you’re unsure where to start when creating a workplace social media policy, book a free consultation with Employment Law Services. Members of our expert team will be happy to provide employment law advice for businesses. Contact us today.

What is the law on redundancy for employees?

Redundancy can happen for any number of reasons, leading to reductions in a business’s workforce. Whether you’re expecting it or not, the important thing is to remain calm. There are laws in place to govern redundancy for employees. This includes redundancy pay, notice periods, the nature of dismissal, and more. 

Knowledge of redundancy law is important for both employees and employers. That’s why we’re breaking down each aspect of employee redundancy law below. 


Redundancy law for employees

It’s enshrined in redundancy law UK for employers that employees are entitled to certain allowances. This is designed to protect employees’ rights and prevent exploitation. Two considerations during a redundancy are: 

  • Compulsory redundancy – an employer selects who to make redundant. Selection must be transparent and based on fair criteria. 
  • Voluntary redundancy – individual workers can volunteer to be made redundant. An employer will approach employees with a redundancy offer when they’re planning to remove certain job roles. 

Reasons for redundancy include: 

  •  Where the business disappears, that is to say the employer is closing down the business altogether 
  • The employer is closing down his business in the place where the employee is actually employed, which could be summarised by saying that the workplace disappears 
  • The business has a diminished need for a particular role 

Employees facing redundancy have rights to the following: 

Redundancy pay 

Typically applies to employees that have worked for their current employer for at least two years. Statutory redundancy pay is not taxable under £30,000 and is calculated based on weekly earnings. For those under 22, it’s half a week’s pay for each full year. Between 23-41 it’s one week’s pay per full year. Then for employees over 41 it’s a week and a half pay per year. 

Exceptions to redundancy pay occur when an employer offers to keep an employee on, or when the employee refuses an offer of suitable alternative work. Employees are also not entitled to statutory redundancy pay if they fall into one of these categories: 

  • Crown servants, armed forces members, police. 
  • Apprentices. 
  • Formerly registered dock workers and share fishermen. 
  • Domestic servants who share a familial connection with the employer 

Along with statutory redundancy pay, employees are entitled to their holiday pay and any contractual company benefits when they’re made redundant. 

Notice period

Employees being made redundant must be given a notice period prior to the end of employment. The duration of this period may vary between jobs, although it will likely be included in the contact. If not stated in the contract, the notice periods for statutory redundancy are: 

  • At least a week for those that have been employed by the same organisation for between one month and two years. 
  • One week per year of employment for those between two and twelve years. 
  • Twelve weeks for those employed for longer than twelve years. 

Employer consultation

Employees are entitled to a consultation with their employer to talk about the reasons for redundancy, as well as any alternatives. There aren’t any associated parameters if there are a total of 19 or less redundancies taking place. However, employers at a single establishment are making 20 or more within a 90-day period, they are bound by collective redundancy rules. 

In this event, the consultation should take place between the employer and a representative. They can either be nominated from among the employees or provided by a trade union. The minimum length of a collective consultation varies depending on the number of redundancies. For 99 or less it can take at least 30 days, and for 100 or more this is 45 days. It covers: 

  • Reasons behind redundancies 
  • Measures to avoid redundancies 
  • How to minimise dismissals 
  • How to limit the effects of redundancy for employees 

UK businesses must notify the Redundancy Payments Service (RPS) before the start of a collective consultation. This is done by filing form HR1. Employers open themselves up to unlimited fines if they don’t follow this procedure. 

Read the full list of legal requirements for collective consultations. 

Option for job moves

Although it’s not guaranteed, employees facing redundancy might be offered suitable alternative employment. This will be in another role within the same organisation. Job suitability criteria includes: 

  • The job terms 
  • The employees’ relative skills, abilities, qualifications, and circumstances 
  • The pay, benefits, status, hours, and location 
  • The similarity of the work compared to the employees’ current role 

Employees offered alternative employment have the right to a 4-week trial period. During this time, they can voice any reservations about the role and decide if the job is unsuitable. Refusing alternative employment during this period will not affect their employee rights, which includes statutory redundancy pay.  

In a similar vein, employees that have been continuously employed for at least two years can request time off to find a new job. Employers can also provide training to help the employee find another job. The amount of time granted will vary depending on the individual’s circumstances. Any time off must be paid up to a maximum of 40% of week’s pay. 


Unfair dismissal

A major aspect of redundancy law is the grounds for dismissal. Under UK law, employees cannot be selected for dismissal due to reasons relating to gender, sex, age, disability, or pregnancy. If you suspect you’ve been subject to an unfair dismissal, or you employer hasn’t fulfilled redundancy responsibilities, you could make a claim to an employment tribunal. 

Employees should also be aware that employers must provide a reason for dismissal that’s consistent across employees. For example, one employee can’t be dismissed when another has done the same thing and kept their job. It’s advisable to obtain your dismissal in writing. 


Get redundancy advice for employers

At Employment Law Services, we understand that redundancy can be an awkward and complicated process. Fortunately, our specialist team are experts in employment law for business. This allows us to help employers and employees make the most of tricky legal situations like redundancy. 

Contact us today. 

Is it against the law not to give sick pay?

In recent years, many businesses have had to give out more sick pay than usual due to the Covid-19 pandemic. Data from the Office for National Statistics (ONS) reveals the 2022 UK sickness absence rate increased to 2.6%, up 0.7% from the 2019 figure. Therefore, even though the pandemic is in its twilight, employer sick pay law is still just as relevant.  

Continue reading to discover if it’s against the law for UK companies not to give sick pay, who’s eligible for sick pay, and more. 


Sick pay law for employers UK

While there is no express statutory right to sick leave, providing Statutory Sick Pay (SSP) is a legal requirement for UK employers. It applies to all an organisation’s eligible employees when they’re prevented from working due to illness. All employees, and certain groups of workers, are eligible for Statutory Sick Pay (SSP) as long as they meet the other qualifying conditions, and these groups are classed as employees for the purposes of SSP.  The law is broken up into different parts to govern how, when, and why SSP gets allocated. 


Employees are entitled to a minimum amount of Statutory Sick Pay, which follows the same guidelines as wages. This means SSP gets paid on the regular payday with tax and National Insurance deducted. Employees also only get SSP for the days they would ordinarily be expected to work, known as ‘qualifying days’. 

As of April 2023, the weekly rate of SSP is £109.40p for a maximum of 28 weeks. Payment starts once an employee has been sick for at least four consecutive days, including non-working ones. However, employers will have to pay for these first three days if the employee has received SSP within the last 8 weeks (and this included a three-day waiting period). A day that has been partially worked before an employee becomes ill is not considered a sick day for the purposes of SSP. 

However, certain types of employment are subject to different entitlement rules, including directors, agency workers, and educational workers. You can also have a look at the Government SSP calculator. 

Fit Notes

For the purposes of administering SSP, employers are not allowed to insist on a statement of Fitness to Work, commonly referred to as sick/fit notes, for at least the first seven days of absenceAfter that time employer may insist on a statutory sick/fit note or other reasonable evidence. In cases of absences of less than seven days, employers should require evidence from the employee of their incapacity to workThis ‘self-certification” can comprise a signed statement from the employee giving the dates and brief description of their incapacity on a form of the employer’s own choosing or the HMRC Form SC2.  

Where sick/fit notes are requested for absences of seven days or longer, employees can get them from the following healthcare professionals: 

  • Doctor or GP 
  • Occupational therapist 
  • Registered nurse 
  • Physiotherapist 
  • Pharmacist 

Employers can’t withhold SSP in the event an employee is late in producing an eligible fit note. Employers also cannot force employees to take annual leave when they’re eligible for sick leave. 

Government help

Businesses that have become insolvent can pay SSP to employees that were sick during that time. If this is you, you can help your employees by telling them to contact the Statutory Disputes Team. 

Employees that have their contract terminated during periods of sickness can claim Employment and Support Allowance as an alternative. 


Employee eligibility for Statutory Sick Pay

Employees must meet the following conditions to qualify for SSP: 

  • Give appropriate notice and proof of illness. 
  • Possess an employment contract. 
  • Have done work under said contract. 
  • Earn a minimum of £123 per week average. 
  • Has shown evidence of a ‘period of incapacity for work’ (sick for four consecutive days). 

It’s possible for an employee to be eligible for SSP from multiple jobs. They can also obtain SSP for one and not the other, due to working conditions. Nevertheless, there are some exceptions that prevent employees qualifying for SSP: 

  • They’re receiving Statutory Maternity Pay or Allowance 
  • They were in custody or on strike on the first sick day 
  • They’re working outside the UK 
  • They’ve received the maximum amount of SSP (28 weeks) 


Access employment law help for employers

Need assistance managing staff absence? The Employment Law Services team are experts when it comes to small business employment law. Advice on effectively and legally managing staff absence is just one area of our professional services for SMEs. 

Contact us today for a free consultation. 

Can occupational health overrule a GP sick note?

Employers can sometimes be left feeling powerless when they’ve been shown a fit note (previously known as a sick note). Your workforce is depleted, and it doesn’t feel like there’s anything you can do about it. Or is there? Managing sickness absences is a skill business leaders should master to maintain productivity and keep employees happy. 

In this blog, we’ll examine how occupational health interacts with GP fit notes and if the former takes precedent.


What is occupational health?

Occupational health (OH) is a branch of medicine dedicated to the health of those in the workplace. Occupational health professionals assess the impact work is having on employees’ health. They can then provide advice and recommendations to employers on an individual’s fitness for work.  

Occupational health services evaluate fitness to work in relation to the role. This means OH assessments will vary depending on the industry, or even the position held by the employee. An office-based job, for instance, would likely have more of a mental impact than a role in construction. 


What are fit notes?

A fit note is a written statement from a doctor or other healthcare professional. It serves as evidence for an employee’s physical and mental state, as well as recommendations for employers. Fit notes are not a requirement for employers to provide Statutory Sick Pay (SSP). However, they can be requested when a worker is experiencing a prolonged absence. 

Fit notes can only be issued to individuals who have been off work for more than seven consecutive days due to illness. A fit note can include: 

  • Information on how an employees’ condition could affect their work. 
  • A statement as to whether it’s believed they’re fit to return to work or not. 
  • Advice on what steps need to be taken for them to return to work. For example, reduced hours or lessened responsibilities. 


Areas of overlap between occupational health and GPs

From the two definitions above, it becomes clear that OH and fit notes are designed to perform similar functions. They’re both options for assessing an employees’ fitness for work and can be used to understand an employee’s wellbeing.  

The main difference is that OH is specifically concerned with workplace health, while GP fit notes tend to be broader in scope. As a result, the former contains advice that is specific to the business and the type of work being done. This can be used more effectively by employers to make improvements to support employee wellbeing. 


Employer advice to manage sickness absence

So, can employers use occupational health to overrule fit notes? Neither has more legal weight than the other, so it’s up to the employer to decide. It can be effective for businesses to utilise OH to provide context to fit note advice. This helps employers provide the best working environment for employees. 

Oftentimes, employees will put higher value on the professional opinion of a GP because they interact with them more often. It’s therefore important that employers don’t dismiss fit notes entirely.  

However, you choose to deal with fit notes and occupational health, the following is good practice for managing sickness absences. 

Put a sickness absence policy in place

Sickness absence is something every employer has to deal with sooner or later. As such, it pays for the business to have a robust plan in place. It establishes a clear procedure for both workers and employers when sickness absence occurs. This demonstrates equal treatment of employees, as well as encouraging openness. 

An essential part of this plan should be accurate record keeping. This means if anyone’s unsure of what to do in the event of a sickness absence, the documents are there to be referred to. 

Maintain communication

Developments can happen when a member of a team is absent. So, while they aren’t present in workplace activities, it’s important they’re still kept in the loop with key changes in the business. Additionally, it’s best practice to maintain contact and offer assistance to absent employees. 

Seek professional assistance

Long-term absences can be difficult for employers to deal with. On one hand, employers have to respect the circumstances of the individual’s absence. On the other, the business is losing productivity. Fortunately, there’s a wealth of occupational health advice for employers today. This should be utilised early in the timeline of sickness absence. 

It’s the employer who decides what action should be taken and when, so it’s important to make the right decisions. Mistakes can be damaging to an employer’s reputation and existing workforce relationships.  


Employment law for employers

Looking for an employment law expert for employers? The team at Employment Law Services are highly experienced in dealing with unique employer situations. Regardless of the length or cause of your employee’s absence, we can give the expert advice needed to put you on the right track. 

Contact us today.