Our Guide is updated for 2012.
There are various ways your Employment can come to an end – but if you are an Employee you have the right not to be unfairly dismissed. From 1st October 2011 those defined as ‘agency workers’ will also have a right not to be unfairly dismissed for reasons relating to the Agency Workers Regulations – see full details in our Guide here.
(Your employers, in certain circumstances, can change your terms and conditions of employment – see the ‘Written Statements and Contracts’ section for information).
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If you are an Employee – How your employment can come to an end:
1. You or your Employer can give notice to end your employment if you are a permanent employee. Your contract should contain reasonable notice periods that you or your employer can give each other. There are minimum periods of notice required by law, which are:
- You must give your employer a minimum of 1 week’s notice if you resign and have one or more month’s service.
- Your employer must give you 1 week’s notice if you have between one month and less than two years service; at least 2 weeks notice if you have been employed continuously for two years; and an additional week’s notice for each further complete year of service (up to 12 weeks)
- Your employer can however end your contract without notice if your conduct justifies it (which is called ‘gross misconduct’) – but see point 5. below about your employer needing to follow procedures correctly.
However, your contract may specify longer periods of notice that you would need to give if you were
resigning, or your employer would need to give you if they were
dismissing you (and these longer notice periods would apply)
And you can choose to waive your rights to give/receive the full notice period, or agree to accept a payment in lieu of taking the full notice period.
If you are dismissed without being given the proper notice you are required to be given by your Employer (the legal minimum or your contractual notice, whichever applies) your length of service is calculated by adding on the legal notice you should have been given – when you are working out how long you have worked for your Employer. However, if you are calculating your service to make an Employment Tribunal claim, (for unfair dismissal for example) your employment is treated as ending on the day you were dismissed (i.e. not adding the appropriate notice period on top).
2. Before 1st October 2011 you can be retired if you reach the default national retirement age of 65. This default retirement age is being removed during 2011 – for details see our new Guide here.
3. Where you are employed on a Fixed Term contract your written statement should state the date the contract is expected to end. Generally your employer does not have to give you notice of this expiry date.
However your employer may be able to terminate your contract
before it’s nominated end date, if this is written into your contract, by giving the appropriate notice period (as in point 1. above).
If you do not have a notice period in your Fixed Term contract and it is ended early, this may be a breach of contract and you may be able to claim damages.
If your Fixed Term contracts ends on its expiry date and is not renewed, or you are given notice to end it early, and you have one years continuous service with your employer, you are entitled to ask for a written statement from your employer explaining the reasons for your contract ending.
If you are unhappy about this you should have the right to ask for an appeal under your employers dismissal procedure.
4. You may feel that you have no choice and are being forced to resign and claim constructive dismissal.
This may happen if you feel a serious incident has happened at work and you have been treated badly and you are unable to continue working for your employer – e.g. a breach of your contract, such as your employer not paying you or suddenly demoting you for no reason; your employer forces you to accept unreasonable changes to your conditions of employment without your agreement; bullying, harassment or violence against you by a work colleague; making you work in dangerous conditions.
Before you resign and claim constructive dismissal you should raise an internal grievance first, otherwise an Employment Tribunal may refuse to hear your constructive dismissal claim or reduce any compensation you may receive. Constructive dismissal is notoriously difficult to prove so tread carefully and take advice from a qualified person.
5. There are various reasons why your employer can dismiss you – there are fair and unfair reasons.
You have a right to request a written statement explaining why you have been dismissed and whether you have received notice or not, if you have been employed continuously by your employer for one year.
NB: Regardless of the reason for your dismissal your employer must also act fairly in the procedure they follow to dismiss you – more information about Disciplinary and Dismissal Procedures.
Read our article here about potential reforms to Dismissal laws in 2012.
There are 5 potentially fair reasons for an employer to dismiss you – if you have 12 months or more continuous service with your Employer you may be able to make a claim for unfair dismissal at Employment Tribunal if you believe your dismissal is incorrect – this qualifying period will be amended to 2 years continuous service from 6th April 2012 for those who start a new job on or after 6th April 2012 (this will not apply if you were in your job prior to 6th April 2012, you will still only need one years continuous service):
- Poor Conduct (you break a term of your employment) – e.g. continually missing work, poor discipline, theft or dishonesty. Your employer should follow a fair disciplinary policy to dismiss you for such misconduct and should outline what ‘gross misconduct’ means in your organisation.
- Your capability (you can’t do your job properly or are not performing to the required standards) – e.g. you don’t get along with working practices, colleagues or new technology; you have long term or frequent illnesses that make it impossible for you to do your job. To make this a fair dismissal your employer needs to make sure you’ve had adequate training to do your job and that you’ve had at least one warning that your work isn’t satisfactory and has given you a chance to improve. If you’re off sick your employer needs to make sure that the job is suitable for you and you’ve had adequate time to recover; if you are dismissed on the grounds of incapacity (for health reasons) your Employer must have a followed a fair procedure which will include consultation with you and must have obtained medical evidence to determine whether you can continue to be employed and whether your sickness levels will continue at the same level. If you’re disabled your employer has a legal duty to try to make ‘reasonable adjustments’ to how/where you work and has to take into account the new provisions under the Equality Act 2010.
- Redundancy – this applies when there is no more or not enough work for you and/or others (your employer closes or relocates the business or now needs fewer workers). Your employer needs to select those who are at risk of redundancy in a fair way, consider offering you alternative work, consult you properly before making you redundant and pay your Statutory Redundancy Pay entitlement (for more information on Redundancies click on this Statutory Redundancy pay link) otherwise without all these steps being taken your redundancy could be seen as an unfair dismissal.
- Statutory Restriction – you can be dismissed if continuing to employ you would break the law – e.g. if you’re a driver and you lose your driving licence (your employer would be expected to look for other suitable work for you before dismissing you, if that was possible).
- Another Substantial Reason – i.e. your employer is in a situation where they have an overwhelming reason to dismiss you (they would be expected to look at any alternatives before dismissing you), e.g. – imprisonment; an unresolvable personality clash; the business is relocated and they can’t continue to employ you; if you unreasonably refuse to accept a company reorganisation that changes your employment terms. See our new article here about Large-Scale Dismissals for more information about this type of dismissal.
If your employer dismisses you for the following reasons they are automatically unfair (regardless of your length of service) and you may receive compensation at an
Employment Tribunal if you make a claim – :
- if you ask to become a trade union member, or refuse to join a union
- taking part in official industrial action that lasts less than 12 weeks (however, if you take part in unofficial industrial or strike action you cannot claim unfair dismissal).
- having been discriminated against on grounds of age, race, sex, disability, sexual orientation or religion or belief
If you are dismissed you should first appeal under your employers disciplinary procedures before pursuing a claim at
Employment Tribunal. If you make a claim to Employment Tribunal you need to do this within 3 months of being dismissed (unless your company’s disciplinary procedures haven’t been finished).
http://www.employmenttribunals.gov.uk
Compensation for unfair dismissal at Employment Tribunal is meant to put you financially where you would have been if you had not been dismissed.
You may find these links useful:
http://www.direct.gov.uk/en/employment/employees/RedundancyAndLeavingYourJob/DG_10026692
and
http://www.direct.gov.uk/en/employment/employees/ResolvingWorkplaceDisputes/DG_10027991
6. Insolvency.
Insolvency happens when an Employer has no money to pay the people they owe in full, including their employees, and they have to make arrangements to meet these debts.
There are different types of insolvency. If your Employer is a Limited Company or partnership then Insolvency will be either:
- Administration
- Liquidation
- Receivership
- Voluntary arrangement with creditors.
If your Employer is an individual then insolvency will mean Bankruptcy or a Voluntary arrangement with creditors.
Usually someone is appointed to deal with an official insolvency situation. They will be in charge of the situation and could be called an insolvency practitioner, official receiver, administrator, liquidator, supervisor or trustee.
What could happen to me?
- if the insolvency is official and your Employer is trying to sell the business you may wish to carry on working for them (or an official administrator, receiver or liquidator) and your transfer to another company will be covered by TUPE. This does not affect your rights to redundancy pay if the firm closes down later.
- if the insolvency is not official, your Employer, if he cannot pay you, may be forced to lay you off or put you on short-time working.
- if the insolvency is official and compulsory and the business cannot be sold then your employment would terminate automatically but you would not be entitled to make a claim for Unfair Dismissal.
- If the insolvency is voluntary, the liquidator will inform you if your employment may be terminated. If you are dismissed you are redundant and may have a claim for unfair dismissal if the correct redundancy procedure is not followed.
What should I do?
You need to find our if your Employer is insolvent or not. If your Employer is still trading but you are not getting paid you may be able to complain to an Employment Tribunal that there has been an
unlawful deduction from your pay.
As this can be a very complicated situation you can speak to the Government’s Insolvency Service (click here).
What can I claim for if my Employer is officially insolvent?
From the National Insurance Fund you may be able to claim:
- Statutory Redundancy Pay (based on a maximum weekly rate of £400 from 1.2.11)
- Wages/Pay – up to maximum of 8 weeks (based on a maximum weekly rate as above)
- Holiday Pay – up to a maximum of 6 weeks (based on a maximum weekly rate as above)
- Compensatory Notice pay – based on 1 week (after 1 months service), plus 1 week per completed year of service (up to maximum of 12 weeks – again subject to maximum weekly rate as above)
- Unpaid contributions into a Pension scheme and maternity pay
- Some debt to you – including holiday pay and wages – are classed as ‘preferential debts’ when your Employers assets are shared out so should have priority.
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If you work in the UK Media Industries and have a question about this or any other topic, please e-mail us at workline@freelanceadvisor.co.uk
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Workline is supported by Employment Lawyers Goodman Derrick LLP. Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.
