We provide comprehensive advice to our business clients on all aspects of employment law including:
A legally binding contract can be in writing, verbal or implied through custom and practice. However, in the absence of a written document, employers leave themselves vulnerable to misunderstandings and disputes as to what has been agreed.
In addition, there is a legal obligation on all employers to provide employees with minimum information, in a written statement of particulars, within two months of commencing employment. Failure to do so exposes them to the risk of up to four weeks wages in damages.
BarrCo recognises that each business is unique and has different needs. We can therefore work with you to produce a variety of tailored contracts and agreements, for both junior and senior employees, and those working on a part-time, fixed-term or other atypical workers.
Protecting your business interests, both during and after employment, is a common concern for employers. To ensure that employees are aware of what they can and cannot do upon leaving your employment, it is necessary to have written clauses in place. However, these will only be enforceable if they go no further than is reasonably necessary to protect your legitimate business interests. BarrCo specialises in drafting such clauses and can work with you to produce a result that provides you with the best protection.
In law, directors are office holders but not all directors are also employees of a company. For a director to be an employee there has to be an extra legal arrangement between them and the employer, which involves obligations on both sides. Where a director is also an employee, their directorship and their rights in respect of that are quite separate from their rights as an employee.
All directors, regardless of whether or not they are employees, have a duty to carry out their work with the skill and care of a person with their knowledge, qualifications and experience. In addition, they owe fiduciary duties to the company, and now have core statutory fiduciary duties, in accordance with the Companies Act 2006.
As an employee, directors are still entitled to receive the minimum statutory written statement of particulars. However, given their senior status, the complexity of their remuneration package and the extra fiduciary duties they owe, it is likely that a more comprehensive document will be required, which usually takes the form of a service agreement.
BarrCo can highlight common pitfalls, identify areas of conflict and draft suitable terms that leaves both parties clear as to the basis of their arrangement and what has been agreed between them. Importantly, we also advise on issues of post employment restrictions and tailor clauses to provide the best protection of your legitimate business interests.
Not everyone who works for a business is an employee. Some individuals are self-employed. Determining whether an individual is an employee or self-employed has a significant legal impact. This is predominantly because of the level of protection afforded to employees but also a business’s liability to HM Revenue and Customs in respect of tax and national insurance contributions.
Where mutual obligations exist, (namely an “employer” is obliged to provide work to an “employee” and the “employee” is then obliged to personally carry out that work, while subject to the control of the “employer”), these are strong indicators that the individual will be an “employee”. They will be paid a regular wage or salary, less the statutory deductions and be employed under a contract of employment.
However, in the absence of such mutual obligations, it may be the case that the individual is self-employed. BarrCo is aware of the factors that both tribunals and HM Revenue and Customs consider when determining the status of a worker and can advise upon these in accordance with your arrangements.
Businesses who consider a person to be self-employed are recommended to clarify such status in an Consultancy Agreement. This provides written evidence as to the arrangement agreed between the parties and can help reduce the risk to businesses should the individual worker or HM Revenue and Customs challenge the status.
While fundamentally confirming the self-employed status, the document must also outline the key responsibilities of each party in respect of many areas including the payment of tax, public liability insurances, provision of equipment, delegation of work, holidays and sick pay and termination arrangements. Without such written clarification, the position is less clear and leaves the business vulnerable to a tribunal claim or interrogation by the taxman.
Staff handbooks are a useful tool to advise employees as to what is required of them in the workplace. Frequently they are used to cover a wide range of areas, in detail, while simultaneously allowing a more condensed contract of employment to be issued.
BarrCo provides two handbooks. The first is a “Work and Families" handbook. This covers the statutory minimum requirements in relation to maternity, adoption, paternity and parental leave and pay, together with time off for family emergencies and flexible working. Many clients find it a useful tool which advises both them and their employees of their mutual rights and obligations, while outlining the procedures to be followed and including sample request forms.
The second document is a “General” handbook. Once BarrCo establishes the nature of your business, a suitably tailored document will provide your business with the maximum protection required. Being in writing and acknowledged by employees, the aim is to reduce the risk of ambiguities and disputes arising later on. Sample forms and agreements are also included.
Where a full handbook is not considered appropriate, particularly for smaller businesses, appropriate individual policies can be drafted and attached as appendices to a contract of employment.
Experience has taught us that many clients like to know the cost of drafting handbooks and policies up front and in response to this, we offer a fixed fee service.
Please contact us for a copy of our General Handbook checklist, which lists the policies available and our comments on when they are appropriate.
A Compromise Agreement is used to record the settlement of a dispute between an employer and employee. It can be used as a means of bringing an employee’s employment to an end without the need for businesses to go through time-consuming procedures. Alternatively, it can be used as a means of settling disputes after termination of employment.
The essence of the agreement is that in return for a financial settlement, the employee (or ex-employee) agrees to waive away their rights to sue their employer in an employment tribunal or other court. In essence this provides a "full and final" settlement, removing the cost, time, disruption and inconvenience businesses face when having to defend such claims.
To be legally binding, there are a number of important legal formalities that need to be contained within the agreement and BarrCo can ensure that such requirements are satisfied. There are also different avenues available when dealing with the tax implications on the payments made, another reason why specialised advice is recommended.
To conclude the agreement, the employee (or ex-employee) must have received independent legal advice from a relevant adviser, typically a solicitor. Their involvement can lead to further negotiations and amendments and BarrCo can remove this burden from businesses and conclude the deal on their behalf.
One of the main areas where businesses are typically exposed to an employment tribunal claim is failing to adhere to the correct procedures. Such failure can result in an otherwise fair dismissal becoming automatically unfair. This exposes businesses to the risk of having to spend time defending a claim and paying out damages, which can include an uplift as a penalty for ignoring some procedures.
Employees with twelve months continuous service (expected to increase to two years from April 2012) are eligible to bring a claim for unfair dismissal unless their employer can demonstrate that they have successfully crossed two hurdles: the first is that they have one of the potentially fair reasons for dismissal; the second that they have gone through the minimum fair, or contractual, procedural.
The importance of complying with the procedures cannot be under-estimated. Catching an employee in the act of stealing or degrading the company on a social networking site, might satisfy the first hurdle, but without going through the correct procedures, businesses expose themselves to the risk of having to deal with a tribunal claim for unfair or constructive dismissal.
While employees need a minimum length of service to bring a claim for “ordinary” unfair dismissal, there are some circumstances that can give rise to claims with less service. If in doubt, BarrCo can provide advice and hands-on-assistance in dealing with such matters.
It goes without saying that in the current economic climate, redundancies and restructuring are an unfortunate situation that many businesses find themselves having to deal with. Employees faced with uncertainty about their future employment react in different ways, which can present businesses with difficulties to handle and the risk of a tribunal claim.
The key to any redundancy procedure is to ascertain, from the outset, what is required and why. By talking this through together at an early stage, BarrCo can help you put together the right business case for your future needs, outline any pitfalls and discuss all possible solutions.
We can then guide you through a carefully handled redundancy exercise, which depending on the numbers affected, may involve collective consultations. The aim is to ensure that employees are taken through a fair and open two-way consultation: that they understand why you have had to embark upon the exercise; how you have created and applied a fair selection criteria; why they have been selected; whether there are any alternatives and guide them through a process aimed at achieving your aims but with a view to employee's understanding why and therefore avoiding a tribunal claim.
As an alternative to redundancies, businesses might consider temporary lay-offs, putting employees on short-term working or making temporary or permanent changes to their terms and conditions. BarrCo can provide support and assistance when discussing what options are best for you and how to implement any changes.
Discrimination claims have consistently increased in recent years, becoming more of a concern for employers. Unlike unfair dismissal claims, there is no limit on the damages which can be awarded and there is no minimum qualifying period. For that reason, employees not eligible to bring a claim for unfair dismissal might simply try their hand at a discrimination claim, based on facts which an employer considers innocent and unjustified.
The scope of discrimination law now covers discrimination on the grounds of race, sex, disability, religion and belief, sexual orientation, marital or civil partner status, gender re-assignment and age, of which there continues to be increased cases.
Claims can be based on direct or indirect discrimination, or harassment. They can relate to events as early as the recruitment process, through poorly worded advertisements, to post-employment damaging references.
As a starting point, BarrCo can assist in having the proper policies and procedures in place. We have a Work and Families Handbook, which outlines the statutory minimum rights and obligations for maternity, paternity, parental and adoption leave, together with requests for flexible working and time off for family emergencies. Helpful forms are included in the appendices.
Importantly, we also provide a thorough Equal Opportunities Policy, which if adequately put in place, with the appropriate training, can provide employers with a statutory defence to discrimination claims.
Where matters become disputed, we can provide hands on assistance in trying to resolve grievances, or dealing with discrimination questionnaires and tribunal claims.
When involved in the sale or purchase of a business, taking over a service contract or outsourcing part of your business, the Transfer of Undertaking Regulations (TUPE) normally apply.
The Regulations are complicated and the employees affected will always be a crucial part of the deal. Under the automatic transfer principle, employees transfer to the buyer who inherits all rights, liabilities and obligations in relation to them. In most cases, the employees are entitled to transfer over on their existing terms and conditions and they are protected against a dismissal which is in connection with the transfer.
Buyers therefore need to gain a clear understanding of the employment situation in order to be fully aware of their responsibilities and the associated costs. Sellers need to make sure that they are able to provide the buyer with the necessary information they require, while still achieving a deal on the best possible terms.
The Regulations also provide an obligation on both the seller and buyer to inform and consult with the representatives of the affected employees. Failure to inform and consult can have expensive consequences of up to 13 weeks wages per affected employee.
BarrCo can assist with these complicated legal issues, to ensure you know what you are getting into with any contract and are properly protected. We can also advise on the pitfalls of making changing to employees contracts and in what limited circumstances this is permitted.
BarrCo has extensive experience in dealing with disputes from start to finish. Where matters reach an employment tribunal stage, we can provide hands on assistance, advice on prospects and guide you through complying with the appropriate procedures and directions.
Where you have received a claim form, you will have just 28 days in which to respond. In most cases, if you do not respond within this timescale, the employment tribunal will make a judgment in favour of your former employee, without giving you the opportunity to state your case.
Where business's adopt the view that they would prefer to have a quick and amicable settlement, we can get involved with attempting to resolve claims as quickly and amicably as possible, through our years of experience in dealing with ACAS.
On the other hand, not all businesses adopt that view, in which case we are renowned for "rolling up our sleeves" and fighting your corner all the way.
Outside employment tribunal work, BarrCo undertakes High Court work in relation to breaches of confidentiality and post employment restriction obligations.
BarrCo will prepare cases to the final hearing stage but does not generally undertake its own advocacy. We are pleased to have an excellent working arrangement with Littleton Chambers, renowned as one of the leading employment law chambers in the City. Through our regular business dealings, competitive rates are always negotiated, for their specialist barristers.
It is said that prevention is better than the cure. With businesses being absorbed in running their day-to-day operations, we appreciate that some may not be aware of their legal obligations or the correct procedures to follow.
BarrCo can help provide a range of services to businesses who feel that they, their managers or employees, may benefit from training and education on their obligations and the correct procedures to approach. Once the needs of your business and the problems being experienced are identified, the appropriate service can be tailored.
Services range from providing and implementing the necessary policies and procedures, to more formal training, interactive seminars or workshops.
The above list is not exhaustive, so if the service you require isn't listed above, please do not hesitate to contact us