Employment law (employer)

Employment Law Solicitors for Employers

Employers must manage a wide range of legal responsibilities throughout the employment relationship, from recruitment and contracts to workplace disputes, business reorganisations and termination of employment.

Employment law changes regularly, and mistakes can lead to Employment Tribunal claims, compensation awards, management disruption and reputational damage. Early advice from an employment solicitor can help an employer make lawful, fair and commercially sensible decisions.

The employment law solicitors listed on Solicitors.com can advise businesses, charities, partnerships, public bodies and company directors on both day-to-day workforce matters and complex employment disputes.

Employment Contracts and Written Terms

Clear employment contracts help define the rights and responsibilities of the employer and employee, reducing the risk of future disputes.

An employment solicitor can prepare or review:

• contracts of employment;
• director's service agreements;
• contracts for senior executives;
• fixed-term and part-time contracts;
• zero-hours and casual worker agreements;
• consultancy agreements;
• apprenticeship agreements;
• commission and bonus arrangements;
• confidentiality provisions; and
• post-termination restrictions.

The terms should reflect how the working relationship operates in practice. Describing someone as self-employed will not necessarily determine their legal employment status.

A company director may be both an office-holder and an employee. A director's service agreement can therefore address both corporate responsibilities and employment rights.

The agreement may cover:

• duties, powers and reporting arrangements;
• salary, bonuses and benefits;
• working hours and place of work;
• conflicts of interest;
• confidential information;
• ownership of intellectual property;
• notice and termination;
• garden leave;
• post-termination restrictions; and
• the director’s resignation from company offices.

Shareholder approval may be required for certain long-term director service contracts. Corporate and tax advice may also be needed where remuneration or share incentives are involved.

Employment Policies and Staff Handbooks

Employment solicitors can prepare and update workplace policies, staff handbooks and management procedures.

These may include policies dealing with:

• disciplinary and grievance procedures;
• equal opportunities and discrimination;
• bullying, harassment and sexual harassment;
• sickness absence;
• family leave;
• flexible working;
• home and hybrid working;
• performance and capability;
• social media and acceptable technology use;
• data protection and employee monitoring;
• whistleblowing;
• expenses and benefits;
• health and safety; and
• drugs and alcohol at work.

Policies should be appropriate for the organisation and implemented consistently. Employers should also ensure managers understand how to apply them fairly.

Recruitment and Employment Status

Employment law issues can arise before a candidate starts work.

Solicitors can advise employers about:

• job advertisements and application forms;
• discrimination during recruitment;
• interview questions and selection criteria;
• right-to-work checks;
• criminal-record checks;
• references;
• medical and health enquiries;
• employment status; and
• offers subject to conditions or background checks.

Employment status determines which statutory rights apply. Employees, workers and genuinely self-employed contractors have different legal protections, and the position depends on the reality of the relationship rather than the label used in the contract.

Changing Employment Contracts

An employer may need to change contractual terms due to financial pressures, new working practices, relocation, restructuring, or changes to employee duties.

Depending on the circumstances, changes may require the employee's agreement and a meaningful consultation process.

Imposing changes without agreement may result in claims for breach of contract, unlawful deductions from wages, constructive dismissal or unfair dismissal.

Dismissal and re-engagement, sometimes called fire and rehire, should generally be treated as a last resort after genuine consultation and consideration of reasonable alternatives.

Disciplinary Procedures and Misconduct

Employers should follow a fair procedure before taking formal disciplinary action or dismissing an employee for misconduct.

A fair process will commonly involve:

• investigating the allegations;
• informing the employee of the case against them;
• providing the relevant evidence;
• inviting the employee to a disciplinary hearing;
• allowing the employee to respond;
• considering the evidence impartially;
• communicating the decision in writing; and
• providing a right of appeal.

Suspension should not be treated as an automatic response to an allegation. The employer should consider whether it is necessary and whether alternatives are available.

An employment solicitor can advise on investigations, hearing procedures, appropriate sanctions and the risks associated with dismissal.

Grievances and Workplace Complaints

A grievance is a concern, problem or complaint raised by an employee about their work, treatment or working conditions.

Employers should investigate grievances fairly, hold an appropriate meeting, provide a reasoned outcome and normally offer a right of appeal.

Grievances may concern:

• bullying or harassment;
• discrimination;
• pay or contractual terms;
• working relationships;
• management decisions;
• health and safety;
• workload;
• flexible working; or
• whistleblowing allegations.

Where a grievance overlaps with a disciplinary process, the employer should decide whether the procedures should run together, separately or sequentially.

Performance and Capability

Capability concerns may relate to an employee's performance, skills, qualifications or health.

Before dismissing for poor performance, an employer should normally clearly identify the concerns, provide reasonable support and training, set realistic improvement targets, and allow the employee sufficient time to improve.

A capability process may include:

• informal performance discussions;
• a performance improvement plan;
• additional training or supervision;
• formal warnings;
• review meetings; and
• a right of appeal.

A fair capability procedure is particularly important where dismissal is being considered.

Sickness Absence and Ill Health

Employers can obtain legal advice on short-term absence, long-term sickness, medical evidence, occupational health reports and ill-health capability procedures.

Where an employee has a disability, the employer may have a duty to make reasonable adjustments. This can include considering changes to duties, working hours, equipment or the employee's working environment.

Dismissal because of ill health should generally be treated as a last resort after consultation, medical investigation and consideration of reasonable alternatives.

Discrimination and Equal Opportunities

Employers must not unlawfully discriminate against employees, workers or job applicants.

Protection can apply in relation to:

• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex; and
• sexual orientation.

Claims may involve direct discrimination, indirect discrimination, harassment or victimisation.

An employer may also be held responsible for discriminatory acts committed by employees during the course of employment. Appropriate policies, training, and effective responses to complaints can help an employer demonstrate that it took reasonable preventative steps.

Sexual Harassment at Work

Employers should take reasonable steps to prevent sexual harassment in the workplace.

This may require:

• a clear anti-harassment policy;
• appropriate staff and management training;
• effective reporting procedures;
• prompt and impartial investigations;
• risk assessments addressing foreseeable harassment; and
• appropriate action where complaints are upheld.

The employer should consider harassment by colleagues and, where relevant, risks involving customers, clients, contractors or other third parties.

Family Leave. Flexible Working

Employment solicitors can advise employers on statutory and contractual rights relating to:

• maternity leave and pay;
• paternity leave and pay;
• adoption leave and pay;
• shared parental leave;
• parental leave;
• parental bereavement leave;
• carer's leave;
• time off for dependants; and
• flexible working requests.

Employers should handle requests and absences consistently and avoid decisions that could result in discrimination or detriment claims.

Redundancy and Business Reorganisation

A redundancy situation may arise when a business or workplace closes, or when the employer's need for employees to carry out particular work reduces.

A fair redundancy process may require:

• identifying an appropriate selection pool;
• using objective selection criteria;
• consulting affected employees;
• considering ways to avoid dismissal;
• searching for suitable alternative employment;
• calculating notice and redundancy payments; and
• offering an appeal.

Where an employer proposes to dismiss 20 or more employees as redundant at one establishment within 90 days, statutory collective consultation obligations may apply. The employer may also need to notify the government within the required period.

Failure to consult properly can result in unfair dismissal claims and protective awards.

Business Transfers and TUPE

The Transfer of Undertakings (Protection of Employment) Regulations, commonly known as TUPE, may apply when a business or undertaking changes ownership or when certain services are outsourced, brought back in-house or transferred between contractors.

Where TUPE applies, affected employees may transfer automatically to the new employer with their existing employment contracts, continuity of service and associated rights preserved.

The outgoing and incoming employers may need advice concerning:

• whether TUPE applies;
• identifying affected employees;
• employee liability information;
• informing and consulting employees or representatives;
• changes to terms and conditions;
• pensions;
• redundancies connected with the transfer;
• allocation of employment liabilities; and
• indemnities in the business sale or outsourcing agreement.

Dismissals or contractual changes connected with a transfer can carry particular legal risks and should be considered carefully.

Dismissal and Termination of Employment

An employment solicitor can advise employers before they dismiss an employee for:

• misconduct;
• capability or poor performance;
• redundancy;
• illegality or a statutory restriction;
• long-term ill health; or
• another substantial reason.

Having a potentially fair reason does not automatically make a dismissal fair. The employer should also act reasonably and follow a fair procedure.

Certain dismissals may be automatically unfair and may not require the employee to have the ordinary qualifying period of service. These can include dismissals connected with whistleblowing, pregnancy, family leave, trade union activity, health and safety or the assertion of statutory rights.

Unfair and Wrongful Dismissal

Unfair Dismissal

Unfair dismissal is a statutory claim that considers the employer's reason for dismissal and whether it acted reasonably in treating that reason as sufficient.

The Employment Tribunal will also consider whether the employer followed a fair process.

Wrongful Dismissal

Wrongful dismissal is a contractual claim. It commonly arises where an employer dismisses an employee without giving the notice or notice pay required by the contract.

A dismissal can be wrongful even when the employer had a fair reason to end the employment.

Settlement Agreements

A settlement agreement is a legally binding agreement under which an employee agrees not to pursue specified employment claims, usually in return for compensation and other agreed terms.

Settlement agreements were previously known as compromise agreements.

An employment solicitor acting for an employer can:

• advise whether a settlement proposal is appropriate;
• prepare or negotiate the agreement;
• advise on notice pay, holiday pay and compensation;
• deal with confidentiality provisions;
• prepare an agreed reference;
• address restrictive covenants and company property;
• consider tax treatment; and
• manage the eemployee'sdeparture.

For a settlement agreement to validly waive statutory employment claims, the employee must receive advice from an independent adviser who satisfies the statutory requirements.

Employers should also take care when describing settlement discussions as confidential or protected, as not every conversation will be excluded from evidence in later proceedings.

Bonuses, Commission and Employee Incentives

Employment solicitors can advise on remuneration and incentive arrangements including:

• contractual and discretionary bonuses;
• sales commission;
• profit-sharing arrangements;
• long-term incentive plans;
• share option schemes;
• employee share ownership;
• retention awards; and
• clawback provisions.

The documents should explain how entitlement is calculated, whether conditions apply and what happens when an employee resigns or is dismissed.

Corporate and specialist tax advice may also be required for share-based incentives.

Confidentiality and Restrictive Covenants

Employment contracts may contain restrictions intended to protect the employer's confidential information, customer relationships, workforce and legitimate commercial interests.

These can include:

• confidentiality obligations;
• non-compete clauses;
• non-solicitation restrictions;
• non-dealing restrictions;
• restrictions on recruiting colleagues; and
• garden leave provisions.

Post-termination restrictions must be carefully drafted. A restriction that goes beyond what is reasonably necessary to protect a legitimate business interest may be unenforceable.

Solicitors can advise employers on drafting restrictions and taking urgent action where a former employee is suspected of breaching them.

Whistleblowing

Workers who make qualifying protected disclosures can receive legal protection against detriment and dismissal.

An employer receiving a whistleblowing concern should consider:

• whether the disclosure falls within whistleblowing legislation;
• how the concern should be investigated;
• confidentiality and data protection;
• protection against retaliation;
• regulatory reporting obligations; and
• whether disciplinary or remedial action is required.

Whistleblowing claims can involve uncapped compensation and potential personal liability for individuals involved in retaliatory treatment.

Employment Tribunal Claims

An employment solicitor can represent employers facing claims in the Employment Tribunal or the civil courts.

Claims may concern:

• unfair dismissal;
• wrongful dismissal;
• discrimination and harassment;
• whistleblowing;
• unlawful deductions from wages;
• holiday pay;
• redundancy payments;
• breach of contract;
• failure to inform and consult; or
• employment status.

Representation may include assessing the claim, preparing the response, gathering evidence, drafting witness statements, negotiating settlement and appearing at preliminary and final hearings.

Acas Early Conciliation

Before most Employment Tribunal claims can be issued, the prospective claimant must normally notify Acas and consider early conciliation.

An employer may be contacted by an Acas conciliator to explore whether the dispute can be resolved without a Tribunal hearing.

A solicitor can advise the employer during early conciliation, assess the value and risk of the claim and negotiate a binding settlement where appropriate.

Employment Law Training and Ongoing Support

Some employment law firms provide ongoing advisory services or fixed-fee retainers for employers.

Support may include:

• telephone and email advice;
• contract and policy updates;
• management training;
• assistance with difficult employee meetings;
• legal updates;
• document templates; and
• reduced or fixed fees for Tribunal representation.

Training managers to recognise legal risks and follow fair procedures can help prevent disputes before they arise.

Choosing an Employment Solicitor for Your Business

When choosing an employment solicitor, consider whether the firm has experience of:

• acting primarily or regularly for employers;
• businesses of a similar size and structure;
• your particular industry or regulatory environment;
• Employment Tribunal litigation;
• redundancy and restructuring projects;
• TUPE transfers;
• senior executive disputes; and
• providing ongoing HR and employment law support.

You should also establish how the firm charges and whether it offers fixed fees, hourly rates, retainers or employment practices liability insurance support.

Find an Employment Law Solicitor for Employers

Employment decisions can create significant legal and financial consequences for a business. Taking advice before starting a disciplinary, redundancy, dismissal or restructuring process can be more effective than seeking assistance after a dispute has arisen.

Use Solicitors.com to find employment law solicitors who represent employers throughout England, Wales and Scotland, or submit an enquiry through our Ask a Solicitor service.

Important: This guide provides general information about employment law in Great Britain. It is not legal advice. Employment law and Tribunal procedure in Northern Ireland are governed by separate legislation and institutions.