The Frequently Asked Questions page is here to provide some examples of regularly queries that we receive.
Please note that the information on this website does not constitute specific legal advice and should not be relied on as doing so. Users should contact Little Rock Employment Law Specialists for advice about particular matters. Users should also be aware that laws and regulations might be different outside England and Wales.
Yes, you are entitled to 28 days which can include 8 bank and public holidays. This applies to full time, part time, agency workers, agency and casual workers.
Am I entitled to have the bank holiday off work?
You do not have an automatic right to take bank or public holidays off work, with or without pay. This will depends on your employment contract.
Your employment contract may say that you have the right to statutory holidays or it may not say anything about contractual holidays or statutory holidays. In these cases, your employer can:
ask you to work bank or public holidays, or
give you bank and public holidays off without paying you for them. In this case, you won't lose your right to take your full statutory holiday at some other point, or
give you bank and public holidays off and pay you for them but ask you to count them towards your statutory holiday entitlement, or
do a combination of all of these.
Can an employer deduct from the final salary payment for excess holiday taken?
Not unless the contract contains an express provision.
If an employee is dismissed for gross misconduct is he/she entitled to be paid outstanding holiday pay?
Yes, up to the statutory minimum number of holidays. Employers may lawfully refuse to pay for holidays untaken over the statutory minimum if there is a contractual clause allowing this where the Employee is dismissed for gross misconduct.
What is the correct procedure for an employer to follow?
A fair procedure would be to:
ensure that the Employee receives adequate notice;
consult with the Employee individually and also an Employee representative if appointed.
apply a fair method of selection including (where possible) objective selection criteria in circumstances where there are a pool of similar positions; and
consider any suitable alternative position if available
In addition, the Employer should write to the Employee requesting them to attend a meeting to consider the situation before any decision is taken to make the position redundant. The Employee must be given the right to be accompanied by a fellow colleague or a certified trade union representative. Following the meeting, if the Employer’s decision is to make the position redundant, the Employee must be notified in writing and given the opportunity to appeal.
When is the employee entitled to a redundancy payment?
The Employee must have two years continuous employment by the expiry of the notice period to qualify for a statutory redundancy payment. In addition, some Employers may pay a contractual or non-contractual redundancy payment.
When is an employee redundant?
The situation in which an Employee’s position may become redundant as follows:
Job Redundancy, i.e. the business closes down;
Place of work redundancy, i.e. the Employee’s place of work closes down;
Employee redundancy, i.e. the Employer’s requirements to carry out work of a particular kind had ceased or diminished;
Does an employee have the right to take time off work during their notice period?
An Employee does have a right to take reasonable paid time off during working hours to look for new employment or make arrangements for future employment.
Terms and Conditions of Employment
When should an employee receive a written statement of basic terms of employment?
These must be provided by the Employer by the end of the second month of employment. This is known as the Principle Statement of Terms and covers the terms and conditions relating to holiday pay, working hours, the Employees job title, place of work, the Employer’s address, salary, etc.
Should the Employer consult Employees before introducing changes to the Contract of Employment?
It is generally speaking good practice for an Employer to consult with Employees before introducing changes especially where they are detrimental to the Employees. In a situation where the Employees may not agree and the Employer is seeking to impose the change, failure to consult could lead to a successful constructive/unfair dismissal claim. Consultation should be with individuals. Where there are 20 or more Employees affected there may be a requirement to consult representatives. There is also a requirement to consult with representatives where contract change follows certain business transfers or changes in contractor.
Does an Employer have to obtain the consent of the Employee in order to vary the Contract of Employment
The general principle is that both parties to a contract have to agree to a change. The best evidence will be a written agreement. Often changes will be made such as the introduction of a pay rise and there will be no written agreement to this but the parties will be seen to have accepted it by their actions i.e. the Employer paying the new sum and the Employee accepting it.
If there are detrimental changes to the Contract of Employment an Employer should seek the Employee’s consent. If the Employee has not protested this does not in all cases mean that the change is accepted, especially where it is a change having little or immediate impact on the Employee. In some circumstances such as where there is a transfer of a business there are special restrictions on the ability of the Employer to change the Contract of Employment of the Employee if the reason is related to the transfer.
Is it always fair to dismiss for redundancy?
Whether there is a genuine redundancy a dismissal of an Employee is potentially fair. However, the Employer would normally be expected to consult with the Employee individually, to follow a fair selection process and consider whether there is any suitable alternative employment for the individual before a decision is made to dismiss. Where there are twenty or more Employees there has to be consultation with Employee representatives as well as notification to the Secretary of State.
In what circumstances will it be fair to dismiss an Employee because of ill health?
In the case of long-term ill health there will come a time when it is reasonable for the Employer to consider dismissal. Before dismissing, the Employer would be expected to speak to the Employee about the situation and ascertain the likelihood of a return to work. It will normally be appropriate to obtain a medical report to establish a prognosis. In the event that return is unlikely in the foreseeable future or it is unclear, that may make it fair to dismiss.
In a case in which the Employee falls within the definition of the Equality Act 2010 consideration will have to be made as to whether reasonable adjustments can be made to assist the Employee's return before a final decision on dismissal is made. In the case of frequent short term absences, a fair dismissal may be possible if the attendance falls well below the required standard for attendance. It would be expected that the Employee has been given the opportunity to improve and gone through a fair procedure such as the ACAS procedure.
Does the Employer following the ACAS procedure mean that there are no other procedural requirements that must be followed?
In most cases of dismissal there will be other procedures which should be followed. In conduct and capability cases an Employer should also follow their own disciplinary procedure. In other cases such as redundancy there will be an expectation for there to have been a process of consultation, consideration of alternative work and a fair selection process.
Can an Employee be fairly dismissed because he or she is incompetent?
It is potentially fair to dismiss an Employee for a reason relating to their capability to perform the job or because of their lack of qualifications. However the Employee must have the problem highlighted to them and the opportunity to improve. A fair procedure (such as ACAS procedure) should be followed including application of the Employer’s capability of disciplinary procedure as appropriate.
What are the qualifying conditions for an Employee to bring an unfair dismissal claim?
Generally, to claim unfair dismissal, you have to have worked for your employer for two years if you started on or after 6 April 2012 or at least one year if you started working for your employer before 6 April 2012.