Key Employment Law Issues for Employers
Frequently Asked Questions
An employee has less than 2 years' service — can we dismiss without risk?
Employees with less than 2 years' continuous employment generally cannot bring an unfair dismissal claim (ERA 1996 s.108). However, dismissal remains risky in several circumstances regardless of service length: (i) dismissals that are automatically unfair — whistleblowing, pregnancy and maternity, assertion of a statutory right, trade union activity — have no qualifying period; (ii) dismissals that constitute unlawful discrimination under the Equality Act 2010 have no qualifying period; and (iii) dismissal during or at the end of a TUPE transfer. A solicitor reviews the specific circumstances before any dismissal — even where the employee is within the qualifying period.
What is the ACAS Early Conciliation process and can we avoid the tribunal through it?
Before issuing an employment tribunal claim, a claimant must first notify ACAS (Early Conciliation). ACAS contacts both parties and attempts to facilitate settlement — without any compulsion on either party. The EC period lasts up to 6 weeks. Approximately one-third of employment disputes are resolved through ACAS conciliation without a tribunal claim. A solicitor advises employers during the EC period — evaluating the merits of the claim, the financial exposure (compensation caps: unfair dismissal basic award up to £21,000; compensatory award up to £115,115; no cap on discrimination awards), and whether a without-prejudice settlement is appropriate.
Can we include a non-compete clause in a settlement agreement?
Yes — a settlement agreement can include (or confirm) post-termination non-compete, non-solicitation, and non-dealing restrictions that were in the employee's contract of employment, or introduce new restrictions as part of the settlement. The restrictions must be enforceable — reasonable in scope, duration, and geographic coverage — to be effective. Where the employee's contract contained a non-compete that was arguably unenforceable (for example, because it was too wide), the settlement agreement can be used to introduce a narrower, demonstrably enforceable replacement. A solicitor drafts the restrictions and advises on their enforceability.
An employee has raised a grievance — do we have to follow the ACAS Code?
Yes — the ACAS Code of Practice on Disciplinary and Grievance Procedures applies to grievances as well as disciplinary matters. Employers must: inform the employee of the basis on which the grievance will be considered; hold a grievance meeting with the employee; allow the employee to be accompanied by a colleague or trade union representative; and inform the employee of the outcome and their right to appeal. Failure to follow the Code does not make the employer automatically liable, but a tribunal will take the failure into account and can uplift any compensation by up to 25% where the employer has unreasonably failed to follow it.
We need to make 25 employees redundant — what are the collective consultation requirements?
Where an employer proposes to make 20 or more employees at one establishment redundant within a 90-day period, it must: (i) notify the Redundancy Payments Service (HMRC) using Form HR1 at least 30 days before the first dismissal (45 days where 100+ redundancies are proposed); (ii) elect or consult with appropriate employee representatives (or an existing trade union if one is recognised for collective bargaining); (iii) consult in good faith with a view to reaching agreement (not merely informing); and (iv) provide the prescribed information in writing to the representatives at the outset. Failure to comply with collective consultation obligations exposes the employer to a protective award of up to 90 days' actual pay per employee — uncapped. A solicitor advises on compliance with all collective consultation obligations from the earliest planning stage.