A to Z of employment law
Maz Dannourah

U-Z

U is for Unfair dismissal

V is for Vicarious liability

W is for whistle-blowing

X is for eXit interviews

Y is for Young workers

Z is for Zero-hours contracts

Unfair dismissal

Employees who have more than two years’ service have the right not to be unfairly dismissed.

There are a number of ‘fair’ reasons for dismissal, and these include employee conduct, ability and redundancy.  In each case, however, employers must follow the correct procedures if the dismissal is to be seen to be fair.  A claim for unfair dismissal may be brought on the basis that either the reason for the dismissal is unfair or the process adopted prior to the dismissal taking effect was unfair.  It may be that both the reason and the process adopted are argued to be unfair.

Some dismissals are automatically unfair.  These include dismissals on the grounds of “whistleblowing”, health and safety or discrimination.  In these circumstances, there is no qualifying period of employment before the employee can bring a claim.

Following a finding of unfair dismissal, an Employment Tribunal can order that the employee be re-employed in their old role (or into a new role), or be awarded compensation.  The compensation is made up of a basic award (up to £14,670 depending on age and length of service) and a compensatory award (which has a cap of £80,541) or one year’s gross pay, whichever is the lower.  In cases where discrimination is found to have occurred, compensation is unlimited.

Employers should always seek advice before dismissing an employee who has served long enough to make an unfair dismissal claim, as the consequences of getting it wrong could be costly.

Vicarious liability

Vicarious liability is a legal principle which may be applied to hold a party strictly liable for acts of wrongdoing committed by another party.  In an employment context, an employer can be held to be vicariously liable for the actions (or omissions) of their employees.

There are a number of situations where employers can be held responsible for the actions of their employees.   These include bullying and harassment, violent and discriminatory acts and even libel or breach of copyright.

The key test is whether those actions took place during the course of their employment or in a personal capacity.  Ultimately, consideration is given as to whether the act of wrongdoing is sufficiently connected with the employment so as to be regarded as occurring in the course of the employment.  This can often be difficult to determine and it is the responsibility of the employer to make sure that they have taken all possible steps to ensure that such acts or omissions do not occur.

A “classic” example of vicarious liability in practice can be taken from the case of Chief Constable of Lincolnshire Police v Stubbs [1999] ICR 547 where the employer was found to be vicariously liable for sexual harassment committed by an employee during a gathering of colleagues at a pub immediately after work.

In order to avoid or limit the risk of claims being brought against an employer in relation to acts of employees, employers should consider safeguards such as policies and training, including the following:

  • ensuring that equal opportunities policies are up to date and regularly reviewed;
  • providing anti-discrimination training for employees (and recording the training has taken place).

Whistle-blowing

The term ‘whistle-blower’ is a general term used to describe a worker who reports wrongdoing at work.  The legal application of the term usually arises in the context of an individual complaining that they have suffered detriment at the hands of their employer in relation to, or because of, the fact that they have “blown the whistle” and made a “qualifying disclosure”.

A qualifying disclosure may be made by an employee (or worker) where they report:

  • criminal offences;
  • breach of any legal obligation;
  • miscarriages of justice;
  • danger to the health and safety of any individual;
  • damage to the environment;
  • the deliberate concealing of information about any of the above.

The disclosure must be made to one of the following:

  • the employer;
  • a legal adviser;
  • Government minister;
  • a responsible person (defined in particular circumstances);
  • a prescribed person (defined in particular circumstances);
  • others (e.g. the police).

Finally, the disclosure must be made in good faith and (since 25 June 2013) the disclosure must be “in the public interest”.

Employees (or workers) who have made a qualifying disclosure obtain particular protection from suffering detriment in their employment, including the right to not be dismissed as a result of their making a qualifying disclosure.  Damages for detriment, as with discrimination claims, are unlimited and there is no qualifying period of service required to obtain the protection afforded to whistle-blowers.

Employers should be careful to avoid treating whistle-blowers in any manner which may be considered to be detrimental as a result of the whistle-blower making a qualifying disclosure.  Further, in order to avoid the risk of concealment (and the continuation of wrongdoing), employers should encourage individuals to report any concerns they have about the conduct of others.  A whistle-blowing policy should be considered (separate to a grievance policy) to encourage issues to be raised and to reassure whistle-blowers that they will not suffer detriment as a result of whistle-blowing.

eXit interviews

An exit interview is not a legal requirement, but an excellent way to gain feedback on a workplace and the procedures it operates.  It takes place with an employee who has handed in their notice shortly before they leave employment – possibly on their last day.  They should not be compulsory and are usually carried out by the Human Resources department rather than the line manager.

As the leaving employee has ‘nothing to lose’ they will often provide frank and honest feedback which should be useful for the organisation.

Guidelines for exit interviews:

Explain to the leaving employee that they will not be penalised for anything they say.

You may want to simply have a free-ranging discussion or alternatively prepare a set of open-ended questions such as:

  • What made you look for another role?
  • What could we have done to keep you with the organisation?
  • What do you like about the company?
  • What do you dislike about the company?
  • Were you given enough training and development?
  • How do you feel about the management of the organisation?

Records from exit interviews should be kept and analysed.  If there are recurring themes, these should be highlighted to the senior management team for action.

If the employee makes accusations during an exit interview, do not jump to conclusions.  All accusations must be fully investigated using whatever procedures are in place for doing so.  You also need to bear in mind that an employee’s answers may be tempered by their need for a reference for future positions.

Used correctly, an exit interview can provide a valuable source of information to help businesses improve.  They can highlight failures in processes and managers who may need further training on aspects of the way they work.

Young Workers

A “young worker” is defined as someone above school leaving age and under 18 for the purposes of the Working Time Regulations.

Employers should be aware of specific rules and regulations which apply to young workers including:

  • rest breaks – a 30-minute break every four and a half hours, a daily rest of 12 hours and a weekly rest of 48 hours
  • maximum weekly working hours – 16 and 17-year-olds cannot normally work more than eight hours a day or 40 hours a week.  These hours cannot be averaged and there can be no opt-out.
  • Minimum Wage – there are set National Minimum Wage levels for workers under 18 (currently £3.79 per hour).

Employers should also be aware of general provisions in relation to health and safety, such as ensuring young workers are not exposed to risk due to a lack of experience, being unaware of existing or potential risks and/or lack of maturity.

Zero-hours contracts

A “zero-hours contract” is a contract which does not specify a minimum number of hours of work to be provided by the employer or to be worked by the employee. In essence, the employee only works when required to by the employer.

Zero-hours contracts were introduced to allow for flexibility in the workplace, in particular for businesses that have fluctuating workloads, for example, in the retail sector or where demand for staff is seasonal or prone to unexpected peaks of activity.    Under a zero-hours contract, employees are only paid for the hours they work and they may be called in at short notice.

Depending on which statistics you look at, the proportion of people on zero-hours contracts varies from 1% to 4% and, according to research by the Chartered Institute of Personnel and Development:

  • almost 20% of employers have at least one employee on a zero-hours contract;
  • they are most prevalent in the voluntary and public sectors;
  • the most common sectors to use zero-hours contracts are catering, education and healthcare.

Recent media coverage has focused on exclusivity clauses in zero-hours contracts which prevent employees working for another employer, despite having no security of a guaranteed number of hours from their main employer.  Whilst many employers are responsible in their use of zero-hours contracts (because the flexibility works for both the employer and the employee), other employers have been seen to be exploiting employees, given the lack of security which comes with a zero-hours contract and the perceived unfairness of exclusivity clauses.  The Government has indicated an intention to ban exclusivity clauses in zero-hours contracts in the near future.

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