The Living Wage is a concept and ideal which has been acknowledged by commentators throughout history. President Franklin D. Roosevelt noted that, “no business which depends for existence on paying less than living wages to its workers has any right to continue in this country.”. His capitalist Presidential successors have evidently not been of the same mind, the federal minimum wage currently standing at only $7.25 per hour, but the United Kingdom has been making some progress in this area

The National Living Wage was introduced by the Conservative Government on 1^st April 2016, applying to all workers aged 25 or over. As of today, 1^st April 2020, the National Living Wage stands at £8.72 per hour.

In the 2020 Spring Budget, the Chancellor of the Exchequer, Rishi Sunak, pledged that the National Living Wage will represent two thirds of the median wage by 2024, a projected figure of £10.50 per hour. This was also pledged by the previous Chancellor, Sajid Javid, in his pre-budget statement in Autumn 2019, together with plans to expand the reach of the National Living Wage to cover workers aged 23 and over from April 2021, and to those aged 21 and over within five years. This was not something that was included in the 2020 budget.

The National Living Wage is still below the ‘real’ living wage, a figure calculated by the Living Wage Foundation as the actual hourly rate of pay needed by workers. This voluntary rate currently stands at £9.30 an hour and £10.75 in London, higher than the current statutory rate. Companies can voluntarily sign up to commit to paying all staff and any third-party contract workers this wage; professional football clubs such as Everton, Liverpool, Chelsea and West Ham have all made the pledge, while some football clubs outside the top league, such as Championship side Luton, also pay the voluntary rate.

The current minimum wage rates are as follows:

• 25 years and over – £8.72 per hour
• 21 to 24 years – £8.20 per hour
• 18 to 20 years £6.45 per hour
• 16 to 17 years £4.55 per hour
• The apprentice rate for those aged under 19 or in the first year of an apprenticeship will increase from £3.90 to £4.15 per hour

If you want to discuss any employment issue, please contact our employment team at employment@franklins-sols.co.uk or by calling our offices on 01908 660966 or 01604 828282.

On 20^th March 2020, the Chancellor of the Exchequer, Rishi Sunak, introduced furlough leave. Whilst placing an employee on furlough leave is commonly-used in the United States, furlough leave is an entirely new UK legal concept.

Currently, if an employer closes its workplace or does not have any work to provide its employees and wanted to send them home, the employer is still obliged to pay employees their normal full pay if it had no work to provide to them. The exception to this is if the employer already has a contractual right to ‘lay off’ an employee, by sending them home without work; such a clause is commonplace in the building and aviation industry, but less so in others.

The Coronavirus Job Retention Scheme (otherwise known as the introduction of ‘furlough leave’) now means that whilst employers would still have to pay 100% of their employees’ wages if they asked them to remain absent from work, they could claim back 80% as a grant from HMRC, up to a maximum of £2,500.00 per month. On top of the 80%/£2,500.00, HMRC will also reimburse the employer the equivalent Employer’s National Insurance Contributions, together with the minimum employer auto-enrolment pension contribution. The employer should pay the employee 80% of the wages that they were paid on or before 19^th March 2020.

Whilst furlough leave was announced on 20^th March 2020, we had to wait until the evening of 26^th March 2020 to receive further details of the scheme. However, now that we have the details, we are able to offer our clients clear and detailed advice as to how to comply with this scheme and how to place employees on furlough leave correctly, in order to allow employers to claim back the furlough leave grant from HMRC.

If you would like assistance in placing your employees on furlough leave, or if you are an employee who has been placed on furlough leave and would like to discuss your rights, please contact Ben Stanton on 01908 660966/ 01604 828282 or by emailing ben.stanton@franklins-sols.co.uk.

In his resignation speech, the Home Office’s most senior official, Sir Philip Rutnam, made a number of allegations of bullying behaviour against Home Secretary, Priti Patel. Amongst those allegations, Sir Rutnam complained that Ms Patel was routinely observed to have been, “swearing” at staff, “belittling people”, and, “making unreasonable and repeated demands”.

Sir Rutnam has stated that he has refused an offer of Settlement, preferring instead to pursue a claim of Constructive Dismissal against the Home Office.

What is Constructive Dismissal?

Constructive dismissal is the term used where an employee resigns in response to their employer’s conduct in breach of an important term of their employment contract. This can be the breach of a written term (i.e. contained within a contract of employment) or by an implied term (i.e. its general duty of care over the employee). In order to succeed in the claim, an employee would need to demonstrate that:

1. The employer has committed a serious breach of contract; and
2. The employee resigned in response to the breach; and
3. The employee did not wait too long after the ‘fundamental breach’ before resigning.

It may not be just one incident that amounts to a fundamental breach; sometimes it is a series of incidents or pattern of behaviour which, taken as a whole, amounts to such conduct.

What amounts to a Constructive Dismissal claim?

Whilst every case is different, the following situations have previously been found to give rise to a claim of constructive dismissal:

• Demotions for no valid reason;
• Suffering bullying, harassment or other discrimination;
• Consistently being underpaid, or suffering a reduction in salary; and
• Failure from the employer to address a grievance properly.

It is recommended that an employee raises their issues in writing in the first instance, by way of a formal grievance, before considering whether to take further action..

In deciding whether a constructive dismissal is ‘unfair’, the tribunal has to decide whether, in the circumstances, the employer’s decision to ‘dismiss’ the employee was a reasonable decision that a reasonable employer would have followed. It is therefore possible that an employee could succeed in a claim of constructive dismissal without it being found to be unfair, although this will generally depend on whether the employer had good and valid reasons for acting as they did.

What are the Time Limits?

You have 3 months minus a day from the date your employment terminated by which to bring a claim to the tribunal, although extra time will usually be allowed to follow the Acas early conciliation process. You can only claim constructive unfair dismissal if you are an employee and have worked for your employer for at least 2 years.

If an employee is considering making a constructive dismissal claim at an Employment Tribunal, they should be aware that it can be a difficult claim to win and independent legal advice should be sought before making the decision to resign.

If you need advice or help in relation to a constructive dismissal claim, feel free to contact our Employment Team who will be happy to assist on 01908 660966/01604 828282 or by email at employment@franklins-sols.co.uk

Do you have a Settlement Agreement?

We offer telephone or Skype meetings in which to discuss your Settlement Agreement remotely, in an effort to assist the Government’s Coronavirus COVID-19 suppression policy.

If you are at risk of redundancy and have a Settlement Agreement, or if you need any other employment advice, we are offering telephone or Skype appointments to discuss your matter with you remotely.

If you would like to discuss any employment issue, please call us on 01908 660966 or 01604 828282 or email employment@franklins-sols.co.uk.

The aim of the TUPE regulations (commonly known as ‘Chew-pee’) is to ensure that employees are protected when their employer’s business is transferred to another business. It assures employees that they will not be dismissed directly as a result of a take-over, that their terms and conditions of contracts will not be worsened, and that affected employees are informed and consulted through representatives prior to the transfer or take-over. Any dismissals where the sole or principal reason for the dismissal is the transfer will be automatically unfair, unless there are reasonable Economic, Technical or Organisational reasons for doing so (known as ETO reasons).

The TUPE Regulations apply if there is a ‘relevant transfer’. There are two types of relevant transfer:

1. Business Transfers: there must be ‘an economic entity’ that ‘retains its identity’, so where an economic business is transferred from one body to another and retain its identity once the transfer is complete (i.e. carries on trading in the same manner), this will constitute a relevant transfer.
2. Service Provision Change: this deals with many contracting and outsourcing cases. When a company engages a contractor and activities are outsourced, it will constitute a relevant transfer.

TUPE applies when there are:

• Mergers and/or sales of a businesses by sale of assets;
• A change of licensee or franchisee;
• Contracting(outsourcing) out of services;
• Changing contractors; and
• Where all or part of a sole trader’s business or partnership is sold or otherwise transferred.

TUPE does not apply in the following situations:

• Transfers by share take-over;
• Transfers of assets only;
• Transfers of a contract to provide goods or services where this doesn’t involve the transfer of a business or part of a business; and
• The supply of goods for a clients use.

When dealing with a TUPE transfer, the Transferor (e.g. the seller) must carry out an extensive consultation process with staff before the transfer process begins, especially if there are any ETO reasons for making any redundancies or changes to the employee’s working conditions. The company must inform appropriate representatives of the affected employees of the transfer and must consult on any proposed measures. Failure to carry out this consultation may result in both the Transferor and Transferee being jointly and severally liable for a claim from the employees of up to 13 weeks’ salary.

TUPE is a complex area so it’s essential to seek legal advice for individual circumstances. If you require legal advice on this call us today on 01908 660966 / 01604 828282 or email Ben Stanton, Partner in our Employment team at ben.stanton@franklins-sols.co.uk.

Q: What is a Contract of Employment?

A: A contract of employment is an agreement between an employer and an employee which sets out their employment rights, responsibilities and duties. The employment contract is an important part of starting a new job, as it is there to ensure that both the employer and the employee understand and agree on the same terms and conditions of the employment relationship.

Q: What must be included in a Contract of Employment?

A: Section 1 of the Employment Rights Act 1996 confirms that a contract should include details of:

• Job Information i.e. job title, description of work, start date of the role, place and hours of work;
• Compensation and Benefits – how much, when and at what intervals will the employee will get paid;
• Time off, sick days, Holiday entitlement, Notice Period, and Pension Scheme.

As of 6^th April 2020, both employees and workers will now have the right to receive a written statement from their first day of employment. The statement must now also include working hours, days of work, all benefits and pay package, length of job, sick leave eligibility, probationary period details and any training that they are required to carry out.

Q: Can I change the terms of a Contract of Employment?

A: Once signed, a contract of employment can be changed but only with the mutual agreement of the employer and employee.

An employer can make changes unilaterally but it could result in the employee bringing a claim for breach of contract if it is a change they disagree with. If an employer does want to change the contract, and cannot get agreement from the employee, they could offer an incentive or terminate the existing contract by notice period and then offer the employee the new contract terms. This is a complex area and we would recommend obtaining specialist legal advice before making any such changes.

Q: Is a Contract of Employment enforceable if it is not signed?

A: The terms of a contract may still have been agreed even if it was never signed. A contract can be made verbally or implied through the conduct of the parties. Put simply, to create a contract, there must have been an offer, acceptance of that offer, some consideration paid, and a clear intention to create legal relations between the parties.

Q: Can my Contract of Employment be illegal and unenforceable?

A: An employee will not be able to enforce their rights at work if they have signed what is determined to be an illegal contract of employment. Your employment contract is likely to deemed illegal if, for example, the employee does not have the right to work in the UK or the parties have agreed to a ‘cash in hand’ arrangement without paying the appropriate employee taxes.

Q: What are the different types of Contracts?

A: There are many different types:

• Indefinite Term Contracts – Full and part time contracts are the most common type of employment contract. They are permanent and ongoing positions. After a period of time, employees under these contracts will gain rights such as maternity pay, redundancy pay, the right not to be unfairly dismissed etc.
• Fixed-term contracts – These only last for a specific period of time. Employees on fixed-term contracts enjoy the same rights and benefits as with any other permanent contract.
• Temporary & Agency contracts – Agency staff have their contracts agreed and managed by a recruitment consultancy or employment agency by whom they are controlled, and as such are generally argued not to be employees of the end-user client. Agency workers usually work on a temporary basis and the length of their contract will be flexible.
• Freelancers, Contractors and Zero-hour contracts – Freelancers and contractors are generally considered self-employed and are not entitled to the same rights as permanent members of staff. With zero hour contractors, the employer is under no obligation to provide a number of hours to work, and the employee does not have to accept any work that is offered to them. They are therefore examples of a very flexible workforce.

Q: Are post-termination restrictions (also known as restrictive covenants) enforceable in my contract of employment?

A: Post-Termination Restrictions seek to prevent a person from carrying out certain activity after the termination of their employment. An employer may be worried that the employee will use certain confidential information they have learned, or client connections they have gained during the employment, in order to compete with the business afterwards. To be enforceable, an employer would generally need to show that:

• It has a legitimate proprietary interest that it is appropriate to protect; and
• The protection sought is no more than is reasonable having regard to the interests of the parties and the public interest.

If you would like to discuss the contents of your Employment Contract, or if you have any post-termination restrictions that you would like to receive advise on, call us today on 01908 660966 / 01604 828282 to book an appointment with Ben Stanton, Associate Partner and Employment Solicitor here at Franklins Solicitors LLP or email Ben at ben.stanton@franklins-sols.co.uk.

Coronavirus continues to dominate the news, spreading rapidly throughout Europe and the Middle East. The Coronavirus (COVID-19) causes respiratory illness, usually resulting in mild symptoms including runny nose, sore throat, cough and fever. Some individuals may experience more severe symptoms, resulting in breathing difficulties and, in extreme cases, death.

This Coronavirus situation is reasonably unique, in that the Government’s advice is that people should choose to ‘self-isolate’ as a precautionary measure if they feel they may be at risk of suffering from the virus (where because they are experiencing any symptoms or because they have travelled to areas which are currently suffering from significant outbreaks). An employer could therefore technically argue that a self-isolating employee is not ‘sick’ in the traditional sense, giving them an opportunity to choose not to pay usual sick pay.

This outbreak creates numerous employment law issues, including questions about travel, health and safety concerns and discrimination claim risks. Employers should start thinking about the following:

1. Sick Pay

An employer should follow their normal sick pay policy if an employee is unable to come to work. The Government has now provided clarification that an employee who has placed themselves under quarantine will:

• Be considered to be ‘sick’; and
• Will be entitled to an enhanced statutory sick pay, providing payment from the first day of illness.

Currently, the statutory sick pay rules means that an employee is only entitled to receive sick pay on the fourth day of any continuous period of absence. This emergency rule (meaning that employees receiving statutory sick pay would receive around an extra £40.00) is aimed at encouraging employees to self-isolate by alleviating financial pressures, rather than them turning up to work and potentially increasing the chances of transmission of the Coronavirus.

2. Race Discrimination Claims

There have been reports of unfavourable comments having been made to employees of Chinese descent, so it is vital that an employer must not treat an employee differently because of their race or ethnicity. Employers should also be aware that they could be liable if their employees harass other colleagues because of their ethnicity.

3. Workplace Closures

Whilst some organisations have chosen to close during this outbreak (such as Deloitte LLP’s London office), you do not necessarily have to close your office if someone with coronavirus comes to work. You should contact the Public Health England (PHE) health protection team immediately for further advice before deciding how to proceed.

4. Absent Staff

Some people might feel they do not want to go to work if they are afraid of catching coronavirus. Employers should listen to any concerns staff may have and must try to resolve them to protect the health and safety of staff. However, if an employee unreasonably refuses to attend work, an employer can take disciplinary action as a result of their unauthorised absence.

5. Proactive Steps

Employers should consider the following simple steps to help protect the health and safety of staff:

• Give out hand sanitisers and tissues to staff, and encourage its usage;
• Emphasize staying at home when sick;
• Consider if any travel planned to affected areas is essential;
• Make sure there are clean places to wash hands with hot water and soap, and encourage everyone to wash their hands regularly;
• keep everyone updated on actions being taken to reduce risks of exposure in the workplace; and
• Make sure their employee’s contact numbers and emergency contact details are up to date.

If you have any questions in relation to this story or any other employment-related issue, contact our employment law team on 01908 660966/ 01604 828282, or email Employment@franklins-sols.co.uk.

A Settlement Agreement (formerly known as a Compromise Agreement) is a legally binding agreement between an employee and an employer. Essentially, the employee agrees to waive any employment-related claim that they may have against their employer, in exchange for the financial terms under the Settlement Agreement.

Settlement Agreements are commonly entered into shortly before or after the termination of an employee’s, often where there is a dispute between the parties or when redundancies are being made. It could be used in almost any work situation where neither party wants a prolonged or messy exit strategy, and want to resolve it as quickly as possible.

When signing a Settlement Agreement, here are 5 key questions to consider before signing:

1. Are there any claims you may have against your employer?

It is important to understand the potential value of your claims, to know whether you are receiving a fair offer under the Settlement Agreement. At Franklins Solicitors LLP, we discuss the events leading up to you receiving your Settlement Agreement in order that you can be fully and properly advised of your potential claims and their value.

2. Has your notice period and holiday pay been taken into consideration?

If you are not working your full notice period, or if you are to be placed on garden leave, this should be included in the Settlement Agreement. It is important to question if your employer is paying a sum in lieu of notice; since 6^th April  2018, any payment in lieu of notice should be taxed. Furthermore, if you have any holidays remaining that you have not yet taken, this should also be included in your Settlement Agreement.

3. Are you paying Tax on your Settlement Agreement?

The first £30,000 of the compensation paid under a Settlement Agreement should be free from PAYE tax and NI deductions. If the Settlement Agreement includes compensation that exceeds the £30,000 limit, any remaining compensation payment will taxed for PAYE but will not be subject to NI deductions. As above, any payment made under the Settlement Agreement in respect of notice pay should be taxed.

4. Are there any Post-Termination Restrictions (Restrictive Covenants) in your contract of employment?

If your contract of employment contains restrictions which apply to you after the termination of your employment, these may apply to you after your employment has ended with the company. We will review your Settlement Agreement and advise you on this position, as well as considering whether these can be negotiated or waived entirely.

5. Are all the agreed terms written in the Settlement Agreement?

A Settlement Agreement will often contain a clause which confirms that, if something is not written in to the Settlement Agreement, it is not contractually binding on either party. You must therefore make sure that every term that you believe you have agreed with your employer is clearly written within the Settlement Agreement. If it is not, neither party has any claim under the Settlement Agreement.

It is a legal requirement that you obtain independent legal advice on the terms of your Settlement Agreement. If you have any questions about Settlement Agreements or would like to arrange an appointment with our Employment Partner to discuss a Settlement Agreement, please call Ben Stanton on 01908 660966 or email ben.stanton@franklins-sols.co.uk.

A number of employment law updates have been announced to take place on 6th April 2020.

If you require legal assistance in relation to any of the changes, or indeed employment law generally, please do not hesitate to contact contact Ben Stanton, Partner in our employment department who will be happy to assist on 01908 660966 / 01604 828282 or by email at ben.stanton@franklins-sols.co.uk.

The May Day Bank Holiday, traditionally the first Monday in May, will be moved forward four days next year in order to coincide with the 75th anniversary of VE Day. The May Day Bank Holiday will now be on Friday 8th May 2020.

VE Day (Victory in Europe Day) commemorates the Allies accepting the surrender of Nazi Germany in the Second World War on 8th May 1945. This is not the first time that the Bank Holiday has been moved for this reason; in 1995 the Monday Bank Holiday was moved to celebrate the 50th Anniversary of VE Day.

The new May Day Bank holiday that would usually fall on a Monday will be observed in England, Wales and Northern Ireland. Scotland have not confirmed they will be moving their May Day Bank Holiday as this is a decision for its own Parliament in Holyrood.
Currently, workers in the UK are entitled to the following holiday entitlement:

• 28 days a year paid holiday (which can include Public Holidays) if they work full time for 5 days a week.
• Part time workers are entitled to the same level of holiday pro rata. If you work casual hours, holiday is calculated at the rate of 12.07% of each hour worked.
• In the case of The Harpur Trust v Brazel, a part-year worker is entitled to holiday based on a full 5.6 week entitlement.

If you require clarification on any parts of your Employment Contract call us today on 01908 660966 to book an appointment with Ben Stanton, Associate Partner and Employment Solicitor here at Franklins Solicitors LLP or email Ben at ben.stanton@franklins-sols.co.uk.