United Kingdom - League of Lawyers

Capital: London
Largest city: London
Official Language: English
Government: Unitary parliamentary constitutional monarchy
Area: 242,495 km2
Population: 67,886,004
Currency: Pound Sterling (GBP)
GDP total: GBP2.215 trillion (USD3.124 trillion)
GDP per capita: GBP33396.46 (USD47,089)
Time zone: UTC/ UTC +1
Calling code: +44
Internet TLD: .uk
[Source: Wikipedia]

The number/participation rate of people in the workforce: 78.3% (Jun-Aug 2022)
The general unemployment rates: 3.6% (Jun-Aug 2022)
[Source: www.ons.gov.uk]

Q&A on Employment Law

What are the laws and regulations governing employment, labour and industrial relations in the UK?
There are numerous statutes and regulations governing employment law in the UK. Two of the main statutes are the Employment Rights Act 1996, setting out many of the fundamental rights and obligations of the employment relationship, and the Equality Act 2010 dealing with discrimination in its various forms. There are numerous regulations supporting the statutory framework, some of which arise from our previous membership of the European Union. Part of UK employment law is also based in contract – the contractual relationship between employer and employee.
Which authorities and/or regulatory bodies enforce employment, labour and industrial relations laws and regulations in the UK?
England currently has a Parliamentary Under Secretary of State (Minister for Employment) who is responsible for employment strategy and some state benefits. The Department of Work and Pensions (DWP) is responsible for various state benefits and state pension provision and Her Majesty’s Revenue and Customs (HMRC) is responsible for administering the income tax system. The main forum for employment disputes is the Employment Tribunal (ET), with appeals to the Employment Appeal Tribunal (EAT) and then to the Court of Appeal. Contract disputes can be heard in the ET, but damages are limited to £25,000. More substantial breach of contract claims are heard in the County or High Courts.
What are the main employment requirements under the employment laws and regulations in the UK that employers should be aware of?
When recruiting, an employer must check that the employee has the right to work in the UK. If an employer takes on an employee who does not have that right, the employer can face substantial fines. Once it has taken on an employee, it must provide the employee with a written Statement of Employment Particulars and enrol them in the Pay as You Earn (PAYE) tax scheme. The employer must account to the government for the employee’s income tax and National Insurance contributions and provide the employee with pay slips. The employer must also enrol the employee in a workplace pension scheme. When recruiting, and during employment, the employer must not discriminate against applicants in relation to any protected characteristic set out in the Equality Act. The employer must pay at least the National Minimum Wage (NMW) and allow at least a minimum period of paid annual holiday and rest breaks in line with the Working Time Regulations (WTR). The employer is responsible for its employees’ health and safety at work.
What are some of the employment rights and benefits to which employees in the UK are entitled to by law?
The most significant rights and benefits are:
- A written Statement of Particulars of Employment (terms of their employment) and pay slips
- A minimum of 28 days paid holiday each year of employment
- To be paid at least the National Minimum Wage
- Statutory Sick Pay
- Not to be unfairly dismissed (after 2 years employment)
- Statutory Redundancy pay (after 2 years employment)
- Maternity and paternity pay and leave
- Not to be discriminated against
- Not to work more than a 48 hour week, unless they have waived that right
- Prescribed rest breaks during the working day and week
- Statutory minimum notice periods
- The right to request flexible working
What are the procedure and requirements to employ foreign persons and expatriates in the UK?
Employment immigration law in the UK is complex and the regulations change frequently. The employee must have a right to work in the UK – either a permanent right to reside and work or a visa allowing them to work for a fixed period (possibly for a fixed number of hours a week or subject to other restrictions). The UK operates a sponsorship scheme whereby employees can come to the UK from overseas to work for a specific employer (the Sponsor) but cannot easily move to another employer. A Sponsor is subject to significant obligations to maintain records and supervision of such employees.
What are the common reasons that employers rely on to terminate employment contracts?
The main reasons are:
- Redundancy – the work the person carries out has ceased or diminished or their workplace has closed
- Conduct – they have committed some act of misconduct which justifies termination of employment
- Performance – they have not performed their role to the required standard
All the above can be fair reasons for termination, as long as proper procedures are followed in the lead up to the termination.

A reason outside the above may fall into a “catch all” category of “Some Other Substantial Reason” (SOSR) which, depending on the circumstances, may also be a fair dismissal.

The parties may also agree that the employee is to retire, although an employer cannot require an employee to retire at any particular age.
How do employees terminate employment contracts? Are employees strictly required to fulfil the termination notice period (if any)?
The employment contract should specify how much notice the employer and employee are required to give each other. There are statutory minimum periods which employers have to give to employees (1 week for every full year worked up to a maximum of 12 weeks) but there is no specified period for employees to give employers unless it has been stated in the contract. If not stated in the contract, a reasonable period would be implied into the contract, usually the same as the pay period: if an employee was paid weekly, a weeks’ notice; if paid monthly, a months’ notice. Whilst it may be a contractual requirement to give notice and fulfil the notice period, the employer would have to demonstrate a loss in order to bring a claim for damages arising out of an employee failing to give proper notice, and it is rare for such claims to be made.
What employment dispute resolution forums are there in the UK and what are their respective jurisdictions/purpose?
Employees may bring grievances against their employer during the employment relationship, and there should be processes (internal to the business) for hearing such grievances and also an appeal process.If there is a dispute, parties can enter mediation privately at any stage. There are many Human Resources (HR) professionals who offer their services as private mediators.

Sometimes the employer may offer an employee a Settlement Agreement, which is a legally binding agreement. This provides that for some consideration the employee agrees to waive all claims against the employer and agree to the termination of their employment subject to the payment of the consideration. To be a binding agreement the law requires that the agreement is in writing and the employee has independent legal advice, which is usually paid for by the employer.

ACAS – the Advisory, Conciliation and Arbitration Service – is the main body which can provide dispute resolution services regarding employment disputes. Employees are required to register their claims with ACAS before a claim can commence in the ET. ACAS can be involved at any stage during ET proceedings at the request of the parties to try to negotiate a settlement.

At the early stages of an ET claim the Tribunal may offer Judicial Mediation. Both parties must agree and then a day is set aside where an Employment Judge acts as mediator to try to broker a settlement. If one is reached, it is a binding agreement. If not, that Judge has no further involvement in the case.
What about trade unions and collective agreements in the UK?
A trade union can ask an employer to recognise it voluntarily, and if it does, then the union can go on to negotiate collective agreements for employees. If an employer does not voluntarily recognise a trade union the union can apply to the Central Arbitration Committee (CAC) for recognition. Such an application will be approved if the union meets specified criteria. The employer can object if it believes the union does not meet the criteria. Once the application is accepted, the union and employer need to negotiate to identify the bargaining unit (which employees are covered by the union). The CAC will also ballot the employees to confirm they wish the union to be recognised. If the ballot finds that the employees want the union to be recognised, the employer must then negotiate with the union. If the union fails, it cannot apply again for another 3 years.
Must a trade union be registered in the UK? If yes, what is the procedure for it to be registered?
Trade unions do not have to be registered in the UK, but there are advantages for them to do so. Even if they are not registered, they have to abide by the same regulatory requirements. The Trade Union Labour Relations (Consolidation) Act 1992 definition is that a trade union must consist wholly or mainly of workers and that its principal purposes must include the (collective) regulation of relations with employers. To be registered, the union applies to the Certification Officer who considers the application and decides if the organisation meets the statutory definition.
What are the key elements to be incorporated in a trade union agreement?
A collective agreement will include a variety of terms including how negotiations will be organised, who will represent employees, which employees are covered by the agreement and which terms and conditions the agreement will cover. Any proposals which would affect the working hours, pay or working conditions of employees will be dealt with through collective bargaining, and those terms and conditions might include:
- Hours and wages
- Employee benefits
- Strikes and lock-outs
- Working conditions
- Management rights
- Disciplinary procedures
- Termination and layoff policies
- Holiday pay
- Employee benefits
- Leave policies
- Retirement benefits
When an employee’s wages are unpaid by the employer, what legal options are available to the employee?
The employee can bring a claim for breach of contract in the Courts, usually the County Court, and claim unpaid wages. Alternatively, and more commonly, an employee will bring such a claim in the ET, or a claim for unauthorised deductions from wages. Unless the unpaid wages are substantial, most claims are brought in the ET.
What are the types of dismissal cases in the UK?
Dismissals are classed as fair or unfair. A fair dismissal can be a redundancy, a dismissal based on disciplinary action arising from misconduct, a capability dismissal based on poor performance or an inability to do the job (for ill health or some other reason) or a SOSR dismissal. Although not a dismissal, an employee may also retire. An unfair dismissal arises where one of the above does not apply, or was not the true reason for the dismissal. In addition, even if the reason was fair,, the dismissal could still be found to be unfair if a proper process was not followed.
What factors are taken into account when determining the types of dismissal cases in the UK?
- Redundancy: the work the person carries out has ceased or diminished or their workplace has closed
- Conduct: they have committed some act of misconduct which justifies termination of employment, rather than some lesser penalty such as a written warning
- Performance: they have not performed their role to the required standard or for some reason can no longer carry out their role
All these dismissals require fair and transparent processes be followed before a dismissal takes place.
When an employee has been unfairly dismissed, what legal options are available to the employee?
A claim of unfair dismissal (and most other statutory claims) can only be brought in the ET. The employee can try to reach a settlement either through direct negotiation with the employer and agreement of a settlement agreement, or through ACAS before bringing a claim. If the employer will not engage in these processes, or they are unsuccessful, then the employee must institute a claim for unfair dismissal if they wish to pursue the matter
What is the limitation period imposed on employees to commence a legal action against the employer?
The limitation period to bring a claim in the ET is short – 3 months from the incident complained of in most cases. If the employee wishes to bring a claim in the courts, such as a breach of contract claim, the time limit is much longer at 6 years from the incident complained of.
When an employee decides to take legal action against the employer, what are the steps to observe and comply with?
If the claim is being brought in the ET (as most are required to be) the employee must first notify ACAS that they wish to bring a claim and enter the ACAS Early Conciliation Process to allow ACAS the opportunity to try to help the parties negotiate a settlement. If that is not successful, the employee must complete an ET1 prescribed form and this is usually done on-line. On that form the employee provides a certificate number from the Early Conciliation process. Once the ET1 form is lodged with the ET, the case is underway. There is no fee to pay.If the employee wishes to bring their claim in a court, they need to send a letter before action in prescribed terms, and if their claim is not satisfied, they may issue court proceedings. There is a fee payable, which will vary depending on the value of the claim.
When taking legal action against the employer, can an employee represent himself?
Yes, and the ET process encourages this, as the normal provision is that whether a party wins or loses, each party pays their own costs. For an employee, if they were to engage a lawyer, they would have to pay that lawyer’s legal fees whether they won or lost. In many cases they would not win enough to cover the cost of a lawyer.If an employee takes court proceedings, rather than ET proceedings, they are still not required to have a legal representative, but the proceedings are more formal and difficult for a layman to navigate. Also, it is likely that the losing party will be ordered to pay the successful party’s costs, so it is riskier to proceed without legal advice.
What happens if an employee’s death takes place before the completion of the legal action filed by the employee?
The employee’s claim can be continued by the personal representatives of their estate, or if there are no personal representatives, the Tribunal can appoint someone to represent their estate. Any compensation awarded to the employee by the Tribunal will be paid to their estate.
Does the aggrieved party have a right to appeal against the decision? If yes, is there a limitation period to file for an appeal?
There are 2 options for “appeal” from an ET decision. To appeal, the losing party must be able to demonstrate that the decision was legally wrong, such as the Judge got the law wrong or did not follow the correct procedure. The appeal must be lodged within 42 days of receipt of the decision or the written reasons for the decision, if later.A second possibility is to request the Tribunal reconsider its decision. If a party believes that the tribunal made a mistake in the way it reached its decision, or they were not told about the hearing, or were not at the hearing or there is new evidence the party can request a reconsideration. This application must be made much more quickly – within 14 days of receipt of the decision.
Is there any alternative dispute resolution available? If yes, what are the key differences between the alternative dispute resolution and a suit filed in court?
With regard to the different dispute resolution options available, please see Q&A 8 above.One of the differences between ADR and a claim in the ET or a court is that the ADR process is confidential and without prejudice. If a matter goes to a hearing in proceedings, then the hearings (including witness evidence) and judgments are public, which may be a reputational risk for some employers. Also, in a settlement arising out of ADR, there is unlikely to be any admission of liability. In an ET or Court hearing, the Judge must make findings of fact and decide on liability. In ADR there is an element of control. A party may not get all they want from the settlement, but they have the certainty of what is to be paid and that the matter is at an end. There is no such certainty if the matter goes to a hearing.

ABOUT THE AUTHORS

Niten Chauhan
Partner, Dispute Resolution and Head of Restructuring & Insolvency, Harold Benjamin

Niten Chauhan is a Partner at Harold Benjamin and Head of the Restructuring and Insolvency Department where he specialises in both contentious and non-contentious matters in the UK and for overseas clients.

Prior to qualifying as a solicitor, he began his career within the financial heart of London by working with a multinational firm of accountants as well as a global investment bank. This corporate experience coupled with a natural legal acumen led him to pursue a path into Restructuring and Insolvency as well as high-value Litigation and later into more complex matters such as Civil Fraud.

In 2015, he was the Lead Partner in the case of P&P Property Limited v Owen White & Catlin and another, which concerned a property fraud committed against an innocent purchaser. In 2018, he took the case before the Court of Appeal and achieved a successful outcome for the client which resulted in the Law Society’s Code for Completion being amended and this continues to have significant implications for the profession today. In turn, he was recognised by the Legal 500 for Litigation and was described as an “incredibly capable and diligent lawyer”.

Given how fraught litigation and especially insolvency matters can be, his aim is always to understand his client’s requirements, manage their expectations and act for them in the most expedient manner in order to achieve the best result.

At present, he undertakes various insolvency and litigation instructions both for corporate clients and individuals and regularly speaks at conferences and events worldwide as well as, in turn, acting for clients from Europe, the Middle East and Asia.

Marina Vincent
Partner, Dispute Resolution and Employment, Harold Benjamin

Marina’s practice involves providing employment advice across all sectors including retail and industrial. She specialises in drafting and advising on employment contracts and policies and procedures relating to discipline, grievance, and redundancy.

Marina frequently advises both employers and employees on settlement agreements as well as acts for clients in Employment Tribunal claims; from drafting the claim or response through to hearings. Areas she has dealt with in the Employment Tribunal have included unfair dismissal, disability, sex and age discrimination and whistleblowing. Marina also represents clients in claims before the courts, such as contract claims or claims to enforce restrictive covenants.

She also advises on employment issues arising from the transfers of businesses and terms for business sale and purchase agreements.

Because of her background in general dispute resolution, Marina also represents clients in contentious probate and court of protection matters. These include disputes regarding Wills, claims against estates and under the Inheritance (Provision for Family and Dependants) Act, as well as the conduct of Attorneys and Deputies.

ABOUT THE FIRM

Name: Harold Benjamin
Address: 60 Queen Anne Street, London, W1G 8HP
Telephone: +44 (0) 20 8422 5678
Email: enquiries@haroldbenjamin.co.uk
Website address: https://www.haroldbenjamin.com https://haroldbenjamin.com/contact/
Key contact: Niten Chauhan, Partner, Niten.Chauhan@haroldbenjamin.com
Established: 1953
Number of lawyers: 40
Languages: Arabic, French, Gujarati, Hindi, Kiswahili, Pashto Punjabi, Spanish, Tagalog and Urdu.

Brief description:
Established in 1953, Harold Benjamin is a distinctive firm with a passionate and business-minded approach to the law. Its pioneering and problem-solving ethos has helped the firm establish an outstanding reputation in the real estate, private wealth and corporate commercial sectors, as well as a wider range of other industries.

Harold Benjamin are recognised for the exceptional service they provide; their specialist lawyers are resourceful, driven and have a truly client-centric approach.

It is not just the efficacy of their advice or their compelling service that wins and retains the firm’s diverse client base. Equally important is their proven ability to consistently come up with imaginative and innovative solutions. This kind of creative and business-focussed thinking is reflected throughout the firm and whatever the complexity and scope of the project, transaction or dispute, they consistently excel due to the outstanding blend of commercial and legal expertise they can offer.

Harold Benjamin provides a problem-solving approach to real estate and private wealth sectors, and is a market leader in providing legal expertise both in the UK and overseas. It has been recognised for it’s work in the Legal 500 and continues to build on it’s international work through strong networks here and overseas.

Key practice areas:
Real Estate, Corporate, Mergers & Acquisitions, Insolvency & Restructuring, Private Wealth and Complex litigation matters