Solicitors in Birmingham

ANSWERS TO FAQS ABOUT EMPLOYMENT LAW – EMPLOYMENT SOLICITOR IN BIRMINGHAM

How do I know if I’m an employee or self employed ?

Legal rights are different for employees and self-employed, and some individuals who work as independent contractors do subsequently claim employment law rights. Regardless of what contractual documents state, an employment tribunal can overrule the documentary labels and will generally look at the true reality. To assist a Tribunal, it will often consider certain factors which help to distinguish the reality of the relationship. These factors are generally known as the “control test”.  Some relevant factors are:

• does the contractor have the right to allow someone else to do the work on his/her behalf ?
• who provides the tools or equipmemt necessary for carrying out the  work;
• what level of  skill is required for the job;
• who controls the work and the work product;
• where the work is carried out;
• the length of the relationship between the parties;
• who decides when the worker undertakes the work;
• are insurance or benefits provided by the contractor;
• are expenses reimbursed;
• is there a written agreement and if so, what does it provide;
• the method and timing of payment; and
• tax arrangements

GRIEVANCES

• ACAS Code of Practice on Disciplinary and Grievance Procedures and ACAS Guide Discipline and Grievances at Work are generally accepted standards for procedures.

• It is no longer necessary for an employee to raise a grievance before going to a tribunal. However, it is advisable for both parties to discuss the matters informally in case it is an issue that could be resolved internally. If this is not possible, then the employee should make a formal complaint with a manager. For the avoidance of doubt, it should be put in writing and specifically identify the issues.

• All staff should be involved in the implementation and improvement of grievance rules and procedures. They should be easily accessible and easy to understand for all staff.

A grievance can be defined as:

• A problem or concern that relates to an employee and his work, working environment, contract of employment, or interaction with other personnel

Procedure

• Follow the employer’s procedure as a starting point

• All complaints should be treated as formal grievances by the employer unless advised otherwise, irrespective of whether the word ‘grievance ‘ is included.

• After the grievance is raised, there should be a formal meeting in order to discuss the issues.  The employee should have an opportunity to explain the grievance and how they want it to be resolved.

• The meeting should be adjourned before making a formal decision. This allows for consideration of facts.

• The employee should be allowed to be accompanied by another employee or  Trade Union Representative at a grievance hearing if the issues relate to a duty owed by the employer to the employee

• The decision made by the employer should be provided in writing and without delay. The employee should have a right to appeal if unhappy with the result.  The grounds of appeal should specify the grounds in writing and it is for the employer to arrange an appeal even though the onus lies on an employee.

Do I qualify for redundancy?

If you have over two years’ continuous employment, the company is closing down a place of work, or ceasing or diminishing the particular work undertaken by you, then you have a right to redundancy payment if made redundant.

I feel I am being treated badly at work, is there anything which I can do?

If you feel so ill-treated that you feel you can no longer work there, you may resign and claim constructive dismissal. You can then sue your employers for unfair dismissal.

Should you feel ill-treated on the grounds of race, religion, sex, sexual orientation, pregnancy or disability, you may also sue your employer for discrimination.

More information about our Tribunal claims service is on our main page.