Key Developments in UK Employment Law in 2023

As we near the end of the first month of 2023, we summarise they key developments in Employment Law we expect to see during 2023.

New Rules on Carrying Over Annual Leave During COVID-19 Crisis

New Rates for Statutory Employment Payments

On 28 November 2022, the Department of Work and Pension (DWP) published its annual rate increases for 2023/24. All of the new rates will take effect on or around the start of the tax year on 6 April 2023.

  • Statutory maternity, adoption, paternity, shared parental pay will increase to £172.48 per week on 2nd April 2023 (up from £156.66).
  • Statutory sick pay will increase to £109.40 per week on 6 April 2023 (up from £99.35).
  • The minimum weekly amount an employee needs to earn to qualify for these will remain at £123.

New National Living Wage and National Minimum Wage Rates

Having accepted the Low Pay Commission’s proposed increases to the national living wage (NLW) and national minimum wage (NMW), the new rates from 1 April 2023 will be:

  • Age 23 or over (NLW rate): £10.42 (up 9.7% from £9.50)
  • Age 21 to 22: £10.18 (up 10.9% from £9.18)
  • Age 18 to 20: £7.49 (up 9.7% from £6.83)
  • Age 16 to 17: £5.28 (up 9.7% from £4.81)
  • Apprentice rate: £5.28 (up 9.7% from £4.81

Retained EU Law (Revocation and Reform) Bill 2022-23

The intended purpose of the Bill is to repeal, amend or replace thousands of EU laws and regulations that were initially retained when the UK left the EU in January last year and will provide the UK Government with the means to update previously retained EU legislation via Parliament. Included in the Bill is a “sunset” provision that could potentially see all EU-derived subordinate legislation and retained direct EU legislation implementing EU law (regulations) scrapped entirely on 31 December 2023 unless otherwise preserved.

The introduction of the Bill could see changes to:

  • The Working Time Regulations
  • The Agency Workers Regulations
  • The Part-time Workers Regulations
  • The Fixed term Employees Regulations
  • TUPE (but only insofar as it implements EU law)
  • The Information & Consultation of Employees Regulations
  • Various Health & Safety regulations
  • The Maternity & Parental Leave Regulations

Trade unions and industrial action

The government is seeking to introduce measures to reduce the disruption caused by industrial action. The Transport Strikes (Minimum Service Levels) Bill 2022-23 was presented to Parliament in October 2022 and if passed, will require minimum service levels in transport services during industrial action (see Practice note, Transport Strikes (Minimum Service Levels) Bill). The government has suggested that it might extend the legislation to other services.

Employee data protection

The government has announced its intention to replace the UK GDPR with a British data protection system, which will be introduced by means of amending the Data Protection and Digital Information Bill.

Human Rights Act 1998

In June 2022, the government introduced the Bill of Rights Bill 2022-23, which aims to repeal the Human Rights Act 1998 and create a new domestic human rights framework around the European Convention of Human Rights (ECHR), to which the UK will remain a signatory. After being dropped by Liz Truss’s government, the Bill of Rights Bill is now reported to resume its passage through Parliament.

Employment Bill

It was previously announced that the Employment Bill would be the vehicle for introducing these long-awaited measures. However, in December 2022, the Business Secretary, Grant Shapps, confirmed that there is no Employment Bill “on the cards per se”.  Instead, the government is supporting Private Members’ Bills that reflect some of the commitments that were expected to be included in the Employment Bill.

Potential legislative developments that were expected to be in the Employment Bill that are reflected in these Private Members’ Bills include:

  • Flexible working
  • New duty to prevent sexual harassment
  • Extending redundancy protection for women and new parents
  • Tipping, gratuities, cover and service charges
  • Neonatal leave and pay
  • Leave for unpaid carers
  • Single enforcement body for the labour market
  • Confidentiality and non-disclosure agreements
  • Dismissal and re-engagement

We discussed some of these key developments in more detail previously in the following blog articles:

The Retained EU Law (Revocation and Reform) Bill Announced

 New National Living Wage & National Minimum Wage Rates from 1 April 2023 

 UK Government Confirms Flexible Working Will Become a Day One Right 

Do You Need Assistance?

The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers on their legal obligations to ensure compliance.  If you have any queries about your legal obligations you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.

All I want for Christmas is…. A stress-free payroll!

Christmas and New Year can be the most expensive time of the year for most people. If you employ people, the festive period can bring a number of problems that you will need to be aware of before you can wind down for you break.

In this blog we will detail some of the most common employer Christmas payroll issues and how to avoid them.

December Pay Date

The December pay date can be awkward, paying your employees a few weeks earlier means a longer month in January.  

Generally, most employees will get paid the last working day of each month, however, if your organisations pay date falls before Christmas, your employees should be paid as normal. Failure to do so exposes your business to potential claims of breach of contract.

At Employment Law Services (ELS), we are often asked at this time of year: “Do we have to bring our employees pay dates forward in December?”

The short answer to this is, no. Employers are not legally obliged to bring their employees pay dates forward for December unless it says so in the contract of employment.

Christmas Bonuses and Gifts

Many employers choose to hand out Christmas bonuses and gifts to their employees to thank them for another successful year in business. On paper, this may look like a straightforward matter, however, for your payroll team it can be a huge challenge.

Employers should set out the difference between cash gifts and physical gifts and then consider whether the employee can sell this gift on for cash or whether the employee in receipt of the gift is a named director of the company and how much money they earn.

This can be a fairly complex matter and therefore, it is important that your payroll team are clear on both definitions.

Employers should note, that they do not have to pay a bonus to employees at all unless it states otherwise in the contract of employment.

Christmas Working Hours

There are no legal requirements around festive working hours and while a lot of employers choose to close the business for the full 2 weeks, others may choose to have their employees work in between. In this event, employers should ensure they have made the appropriate arrangements with pay roll so that these employees are paid the correct salary and on time.   

How can EmployEasily Legal Services help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662. �

Employment Tribunal Guidance for Employers

The Employment Tribunals (ET) are an independent judicial body established to resolve disputes over employment rights between employers and employees. Claims likely to be heard in the ET will involve matters on unfair dismissal, discrimination, wages and redundancy payments.

In July 2017, the Supreme Court unanimously held that ET fees were unlawful and must be quashed. In September 2018, the Ministry of Justice (MOJ) published tribunal statistics for April-June 2018 and across the boards the numbers are up!
Key figures include:

• Number of single claims lodged increased by 165% compared with the same quarter last year.
• The number of single claims outstanding rose by 130% compared with the same quarter last year.
• There have been 12,400 fee refund payments made since the fee refund scheme was introduced, totalling just over £10m.
• Disability discrimination cases had the largest average award (£30,700). Religious discrimination claims had the lowest average award (£5,100). The average award for unfair dismissal awards was £15,007.

If you are an employer and you have received an ET claim, it is crucial you act quickly and carefully to place yourself in the best position to defend the claim, or to reach a fair settlement agreement with the employee. At Employment Law Services (ELS), we have set out 5 top tips that should be applied when responding to a claim.

(1) Address the claim immediately

A tribunal claim is not something that should be set aside to deal with at a later date. Employers should have procedures in place to make sure that, when an ET1 is received, it is immediately brought to the attention of the appropriate people.
An employer should then make the decision on who is going to have the responsibility for dealing with the claim and begin working on the response.

An employer’s response should arrive at the ET office, on the appropriate form (an ET3), within 28 days of the date on which the claim was sent out.

(2) Evaluate the merits of the claim

Employees cannot submit an ET claim unless they have contacted the ACAS early conciliation service in the first instance. If both parties have gone through this process, the employer will probably already have knowledge of the employee’s complaint and had the opportunity to process its merits.

In this event, the employer should carefully carry out an assessment of the employee’s complaint and what defence they may have and then decide whether to fight the case or not.

Sometimes, employers discover that a settlement agreement is the less expensive option when weighing the costs of defending an ET claim. Settlement agreements are legally binding contracts which can be used to end an employment relationship on agreed terms. Once this document has been signed, the employee won’t be able to make an ET claim about any type of claim which is listed on the agreement.

(3) Focus on the issues relevant to the case

When responding to an ET complaint, it is crucial that employers focus on the employees specified allegations and any legal issues that may surround this. An employer’s response should be carefully drafted in as much detail as possible as they may not get the opportunity to introduce more information at a later date.

(4) Pay attention to detail

Whoever is in charge of drafting the ET3 must ensure that there are no inconsistencies and that all statements are factual and supported by the correct evidence.

(5) Submit the ET3 on time

An employer’s response form (ET3) should be submitted within 28 days of receiving the claim. This form can be submitted by using the online submission tool or returning the paper form.

The main thing to remember here is to ensure the tribunal office receive the form before the deadline, the form should not be sent on the 28th day. Employers may have the opportunity to apply for an extension, but this will be permitted at the judge’s discretion.

Fixed Fee ET work

Defending Employment Tribunal claims, or threats of a claim can be costly, but it doesn’t need to be. with Employment Law Services (ELS)’ Fixed Fee Employment Tribunal Representation offering, employers can save time and money. We understand how expensive, stressful, time consuming and distracting defending an Employment Tribunal Claim can be, even before the case ever reaches the hearing stage.

Negotiating the employment tribunal rules & procedures can be confusing & difficult but it doesn’t need to be. With our Fixed Fee Employment Tribunal Representation offering, employers can save time and money.

We believe this approach helps you control costs, minimise stress and wasted time and management resources, allowing you to continue to focus on your core business.

If you are faced with an Employment Tribunal claim, or threat of an Employment Tribunal Claim, Employment Law Services (ELS) can help. If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

Parental Bereavement Bill receives Royal Assent

The new Parental Bereavement (Leave and Pay) Act 2018 sets out that parents who suffer the death of a child under the age of 18 or a still birth from 24 weeks of pregnancy will be entitled to two weeks paid leave. It is expected that these new rights will be incorporated into the Employment Rights Act 1996 in 2020.

At present, most employees have the statutory right to a “reasonable” amount of unpaid time off under the Employment Rights Act, this is to allow them to deal with unforeseen matters or emergencies that involve a dependant.

The death of a child can have a severe impact on a parents’ physical and emotional wellbeing. Therefore, it is crucial that employers manage this difficult time carefully and see that the employee successfully returns to work in the future.

In 2016, a survey conducted by the charity, Child Bereavement UK disclosed that less than one third of British adults who were employed at the time of their loss said they felt supported by their employer. This figure highlights the need for improvement in this area.

New legislation

This Parental Bereavement (Leave and Pay) Act 2018 initially started off as a Private Members Bill, however, it has always been supported by the Government; who expressed: “This law makes parental bereavement leave a legal right for the first time in the UKs history. Losing a child is an unimaginable trauma. I am delighted we have reached this important milestone which so many people have campaigned for.”

The act sets out that:

• A bereaved parent will be entitled to take at least 2 weeks’ leave which must be taken in the first 56 days following the child’s death. This leave should be taken in blocks of 1 week and can be continuous or discontinuous;

• Leave can be taken in respect of each child if there is more than one child involved;

• The definition of a qualifying parent may be framed (in whole or part) by reference to the employee’s care of the child before he/she died (regulations will provide more detail on the definition);

• The rules about rights during that leave (and other family leave) also apply during bereavement leave, including the right to the same terms and conditions (other than in respect of pay) and (broadly) the right to return to the same role;

• The process that should be followed i.e. the requirement to give notice and provide evidence, will be set out within the regulations;

• The rates of pay will also be determined by the regulations, but in order to receive pay (rather than be able to take leave), a parent must have at least 26 weeks’ continuous service and received pay above the lower earnings limit for the last 8 weeks.

Employer considerations

• Employers should have well written bereavement policies in the workplace, this will equip employees with certainty and security during difficult times;

• Details regarding death should be kept private under data protection laws. Employers should consider asking the employee how much information they wish to pass on to their colleagues;

• It is important that employers are aware of the risk of racial or religious discrimination claims that may come as a result of refusing an employee time off for religious observances on death. This is because certain religions require a set time to mourn – For example, Muslims have certain set mourning periods, depending on the relation of the deceased relative.

How can Employment Law Services (ELS) help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

Discrimination because of religion or belief

All employers should already be aware that treating an employee differently because they are Muslim, Jewish, Christian, black, white etc can result in legal action. But, can you be accused of discriminating against another person’s philosophical belief’s?

“Religious or philosophical belief” is one of the 9 protected characteristics under the Equality Act 2010. And unlike the rest, it can be a difficult one to define. As a result of this, the Employment Tribunal has heard many interesting complaints over the years from disgruntled employees arguing that their beliefs should be protected.

Cases from the past have established that various belief systems may be afforded protection under legislation. This came after the Tribunal held that beliefs in climate change, Rastafarianism and anti-hunting should be protected. Since then, it has been extended further to protect beliefs in higher purposes of public-service broadcasting as well as mediums and their ability to contact the dead.

Yet, there have also been some memorable failures in the system when establishing that a belief meets the foundations for discrimination protection.

For example, a belief that the terrorist attacks of 9/11 and 7/7 were authorised by the British and American Governments and that there was a worldwide media conspiracy, failed on the grounds that upon objective scrutiny, such beliefs were “absurd” and not cogent.

As well as this, a belief that people should wear a remembrance poppy from 2nd November until remembrance Sunday, was not enough to be considered as weighty and substantial to qualify.

Furthermore, the objection made to same-sex couples adopting children was held as a mere opinion and not a philosophical belief.

This blog should help guide employers through this legal minefield.

Discrimination defined

Direct Discrimination

Direct discrimination occurs when a person is treated less favourably than another person because of a protected characteristic they have or are thought to have.

Discrimination by association

This is applied to age, race, religion or belief, sexual orientation, disability, gender reassignment and sex.

Perception discrimination

Applies to age, race, religion or belief, sexual orientation, disability, gender reassignment, and sex. This is direct discrimination against an individual because others think they possess a particular protected characteristic. It applies even if the person does not actually possess that characteristic.

Indirect discrimination

Applies to age, race, religion or belief, sex, sexual orientation, marriage and civil partnership, disability and gender reassignment. Indirect discrimination can occur when you have a condition, rule, policy or even a practice in your company that applies to everyone but particularly disadvantages people who share a protected characteristic. Indirect discrimination can be justified if you can show that you acted reasonably in managing your business, i.e. that it is “a proportionate means of achieving a legitimate aim”

What amounts to a philosophical belief under the Equality Act 2010?

In the case of Grainger PLC v Nicholson, the Employment Tribunal set out 5 aspects on how to recognise a philosophical belief and concluded that the belief should be:

• Genuinely held;
• A belief and not just an opinion;
• A belief as to a weighty and substantial aspect of human life and behaviour;
• Sufficiently cogent, serious, cohesive and important;
• A belief that is worth of respect in a democratic society and compatible with human dignity and the fundamental rights of others.

Employer considerations

Most employers will already know that they have a duty to prevent discrimination in the workplace. Failure to do so can be costly and result in increased employee turnover and absenteeism, lower employee morale and productivity and high insurance costs.

Employers should take action to prevent discrimination from occurring in the first place. To achieve this, we advise you take the following steps:

(1) Familiarise yourself with all anti-discrimination laws;
(2) Develop and roll out a diverse anti-discrimination policy;
(3) Ensure all staff are sufficiently trained on anti-discrimination;
(4) Be ready to investigate complaints of discrimination or harassment;
(5) Examine all business decisions for unintentional discrimination.

How can Employment Law Services (ELS) help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

5 Reasons for a fair dismissal

Dismissal occurs when an employer decides to terminate the employment relationship. And, since the Supreme Court ruled that tribunal fees were a barrier to justice, claims against employers have increased by 90%. It is important to note that the average pay out for an unfair dismissal in the tribunal is £30,000.

Terminating an employee’s employment will never be an easy decision. However, at one point it may be the right decision for you and your business. So, when you do need to do this, ensure you have one of the following 5 reasons for a fair dismissal.

(1) Conduct
You can dismiss an employee if:

• They are incapable of doing their job to the required standard
• They are capable, but unwilling to do their job
• They’ve committed some form of misconduct
“Conduct” covers a variety of different acts, from not following instructions, to theft. It is therefore recommended that employers have policies in place that detail examples of what will be classed as misconduct, as well as what will be viewed as gross misconduct.

(2) Capability
Capability is defined in the Employment Rights Act 1996 by reference to the skills, aptitude, health or any other mental trait of the employee.
However, before dismissing an employee on the grounds of capability, employers should offer the employee support and extra training to help them reach the standard expected.

(3) Redundancy
Redundancies are another form of dismissal and can happen when an employee’s job no longer exists. This may be due to the employer needing to reduce its workforce, close the business, or certain work is no longer required.
Whatever the situation, it is important employers consider these key points:

• Employees have the right to not be unfairly selected for redundancy
• Employees may be entitled to a statutory redundancy payment and notice
• Redundancies can be compulsory or voluntary

(4) Statutory illegality
This form of dismissal is not used often but would occur if an employer continued to employ someone that resulted in them breaking the law. For example, you employ a lorry driver and they lose their licence and you have no other alternative (legal) role to place them in.

(5) Some other substantial reason (SOSR)
There is no legal definition of dismissals in this category and some would suggest that this is a “dust bin” category.
Some typical examples include:
• Conflicts of interest
• When a client refuses to work with your employee and you have no other work for them to carry out
• Personality clashes
• Where the mutual trust and confidence has been broken

Please note, that even where a dismissal is potentially fair “for some other substantial reason” the employer must ensure that they have followed procedure and have acted reasonably when dismissing the employee.

How can Employment Law Services (ELS) help?
If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

Know when to outsource a HR function

As a small business owner, how many times have you gone into the office early to find mountains of paperwork that you just never seem to get through?

Most employers will understand the frustration of spending more time than necessary on non-revenue generating activities. Therefore, outsourcing a HR function can make the business more profitable and productive.

What size is the business?
Generally, employers with fewer than 80 employees tend not to have an in-house HR function. Instead, managers deal with any HR or employment issues that arise. However, with the business growing each day, staying compliant becomes a growing concern.

What services do SME’s require?
The nature of the work carried out by an employment law and HR specialist varies and is usually determined on the nature of the organisation and the roles carried out by its employees.

With regard to Employment Law Services (ELS), we work with employers who have no HR function to ensure their business consistently meets all of its legal requirements in terms of HR policies and employment contracts. As well as this, the team are qualified to advise and support business owners and managers who are faced with discrimination claims, redundancy issues, settlement agreements and dismissals.

How much does it cost to outsource?
At Employment Law Services (ELS) we keep our price structure simple. Our clients benefit from a cost-effective solution that saves them extensive amounts of time. Which in turn allows them to focus on the core business activities.

(1) Ad hoc Service

The team at Employment Law Services (ELS) provide UK employers of all sizes with employment law advice, support and representation on an ad hoc basis. Ad hoc work was initially established to help smaller start-up companies draft employment contracts and policies, ensuring new employers are complying with complex employment legislation whilst protecting their business.

(2) Annual Retainer Service

Our fixed-fee annual employment law and HR retainer service is provided by our specialist team of fully qualified employment law practitioners who understand how to balance compliance with UK employment legislation with the practicalities of successful people management in an operational environment where organisational objectives need to be met.
This helps employers manage their employees across all aspects of their employment from offer letters and contracts of employment, to managing absence, poor performance, disciplinaries, grievances and terminations.

Benefits of HR outsourcing 

  • Reduced cost
  • Increased efficiency
  • Access to improved HR IT systems
  • Improved management information (including human capital metrics)
  • Access to HR expertise not available internally
  • Increased flexibility and speed of response
  • Reduced risk

Employer considerations

Employers should consider the following factors when deciding to outsource:

  • Are you spending too much time on activities that do not generate profits or competitive success?
  • Are you carrying out jobs that waste valuable time and energy?
  • Do you have temporary tasks that arise, yet recur in cycles?
  • Do you require skills that are so specialised, but it would be impractical for you or management to do it?

If you are a business owner who employs people and you are not sure what to do next, contact us today for your free consultation. 0370 218 5662.

Time off for dependants: advice for employers

From the first day of employment all employees have the right to time off to care for a dependant. Under s57a and s57b of the Employment Rights Act, all employees are entitled to a “reasonable” amount of unpaid leave. However, what is deemed as reasonable can be fact specific.

Who is a dependant?
A dependant is someone who relies on the employee for care, which can vary from a spouse, partner, child, parent or someone who depends on the employee, for example an elderly neighbour.

When can time off be taken?
• When a dependant falls ill, gives birth, is injured or assaulted;
• To make care arrangements for a dependant who has fallen ill or is injured;
• In consequence of the death of a dependant;
• To deal with an incident that concerns a child of the employee whilst in care of an educational establishment.

How much time off can an employee take?
An employee will be entitled to a reasonable amount of time off to deal with the emergency, but there is no set amount of time as it depends on the situation.
For example, if a dependant falls ill, an employee can take time off to take that child to the doctors and make care arrangements. An employer may then ask the employee to take parental or annual leave if they wished to stay off with the child for longer.

Does the employee have to give notice?
The employee does not need to give notice; however, they should provide the employer with a reason for the absence as early as possible and when they anticipate their return to work.

Should the employee be paid for this time off?
No, an employer does not have a statutory obligation to pay employees for time off to care for dependants.

An employer must not:
• Treat employees unfairly for taking time off, for example refusing them training or promotion;
• Dismiss an employee or choose them for redundancy because they asked for time off for a dependant;
• Refuse an employee reasonable time off.

How can Employment Law Services (ELS) help?
If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

Employment Law Quiz

Employment legislation covers all areas of day-day business activities. This includes what employers can and cannot do in regard to employment contracts, recruitment, wages, dismissals, employee rights and working hours.

All employers – no matter what size – must ensure they comply with UK employment legislation, failure to do so can expose your business to costly employment tribunal claims. Test your knowledge here (answers at the bottom – no cheating!)

(1) When does a contract of employment begin?
  • The first day of employment
  • As soon as the candidate has accepted the job
  • When the candidate has been offered an interview
(2) What age is an employee entitled to the National Living Wage?
  • 16
  • 21
  • 25
(3) What are employees not entitled to?
  • The right to not be discriminated against
  • The right to a safe working environment 
  • The right to 7 weeks paid holiday
  • The right to not be harassed bullied or victimised 
(4) How many weeks of statutory maternity pay is a pregnant woman entitled to?
  • 5
  • 39
  • 52
  • 36
(5) If an employee has a disability, what must the employer do?
  • Make reasonable adjustments 
  • Dismiss them
  • Avoid discussing the subject with the employee
(6) An employee should be paid for all unauthorised overtime
  • True
  • False
(7) What is the current National Minimum Wage Rate for employees aged 21 and over?
  • £6.47
  • £7.38
  • £8.91
  • £10.05
(8) Can an employee claim they have been sexually discriminated against if they have only been employed by the company for 6 months?
  • Yes
  • No
(9) What is constructive dismissal?
  • An act of employment termination made without good reason or contrary to the country’s specific legislation
  • A situation in which an employee’s contract of employment has been terminated by the employer, where the termination breaches one or more terms of the contract of employment, or a statute provision or rule in employment law
  • When an employee terminates the employment relationship in response to the employers behaviour towards them











(1) A contract starts as soon as an offer of employment is accepted. Starting work proves that you accept the terms and conditions offered by the employer.

(2) 25. From April 2018, individuals aged 25 and over are entitled to £7.83ph.

(3) An employee is not entitled to 7 weeks paid annual leave.

(4) If an employee qualifies for Statutory Maternity Pay (SMP) it is paid for a maximum period of 39 weeks. It is paid: for the first six weeks at 90 per cent of their average gross weekly earnings with no upper limit. for the remaining 33 weeks at the lower of either the standard rate of £140.98 or 90 per cent of their average gross weekly earnings.

(5) It is an employers duty to make reasonable adjustments to allow disabled employees to carry out their work activities with ease.

(6) True

(7) £7.38

(8) Yes

(9) Constructive dismissal occurs when an employee terminates the employment relationship in response to the employers behaviour towards them.

Does ‘misconduct’ need to be ‘gross’ to make a dismissal (without prior warnings) fair?

Does dismissal need to be ‘gross’ to make a dismissal fair?

No, held the Employment Appeal Tribunal (EAT) in Quintiles Commercial v Barongo.

In this case, the Claimant worked in pharmaceutical sales and found themselves dismissed on the grounds of misconduct after failing to complete compliance training and not attending a compulsory training course.

On appeal, the employer re-classed the dismissal as serious, yet, upheld the dismissal. The Employment Tribunal (ET) argued that the dismissal was unfair, maintaining that for serious misconduct dismissals prior warning should be applied.

The EAT upheld the employers appeal on the grounds that s90 (4) of the Employment Rights Act does not specify that dismissing an employee without prior warning for conduct that falls short of gross misconduct must be unfair. Although in most cases, such dismissals are outside the band of reasonable responses.

The ET approached this case with the firm view that where conduct fell short of gross misconduct, dismissal could only be viewed as appropriate is prior warnings were in place. The ET should have taken into consideration the entire circumstances of this case, including the ACAS Code of Practice and the employer’s disciplinary procedure. This case has been referred to a new ET for reconsideration.

When considering the fairness of a dismissal, tribunals have to determine whether the employer has acted reasonably or unreasonably in treating the reason given by the employer as an adequate reason to dismiss.

If an employee has committed an act of gross misconduct, then clearly there will be a sufficient reason to dismiss. But what exactly is viewed as gross misconduct?

Gross Misconduct

Gross misconduct occurs when an employee has acted so badly that the employer/employee relationship is destroyed. In this event the employer merits the right of instant dismissal without notice or pay of notice.

It is recommended that employers give equip their employees with a clear indication of what type of behaviour will be considered as gross misconduct. Such provisions should be set out in the contract of employment or within the staff handbook. This then allows employers and employees to easily identify such behaviour in advance and will help determines later that you regard it as significant.

Examples of gross misconduct include, intoxication, theft, bullying or harassment, serious breaches of health and safety rules and fighting or physical abuse.

Depending on the nature of the organisation, employers may wish to detail other offences. Such as, accepting or offering bribes, misuse of confidential information or setting up a competing business.

Employment Law Support for Employers

Terminating the employment relationship should always be a last resort and it is crucial that employers seek legal advice before taking drastic action.

If you are an employer and require employment law advice on workplace policies or any other employment issue give us a call today on 0370 218 5662. You can also find out more about our fixed fee HR packages here and fixed fee employment law packages here, or get in touch.