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Traditionally, members of a partnership or a Limited Liability Partnership (LLP) have their rights defined by the scope of the partnership agreement. However, recent developments have indicated their specific relationship with the partnership may afford them additional rights as a worker or employee.

As it is not uncommon for members of a partnership or LLP to transition in and out of a business undertaking, it is paramount that both the partnership entity and the member have a full grasp of the rights that arise out of their relationship from the outset in order to avoid contention at a later date.

Employee status

Whether or not a member of a partnership or LLP depends on the existence of a contract of employment between the member and the entity. A contract of employment must entail sufficient degrees of control over the employee, and the financial risk of the undertaking cannot disproportionately weigh on the employee. This may give rise to tension where the member also makes key governing decisions for the entity.

If considered an employee, a member will be protected from unfair dismissal. An unfair dismissal claim can arise where an employee is summarily dismissed without proper adherence to grievance procedures. It can also arise in the form of constructive dismissal, where an employee is subject to harassment or unfounded investigations in order to force them to quit.

LLP membership and worker status

In 2014, the UK Supreme Court held that members of an LLP who do not otherwise qualify as employees are entitled to worker status and accompanying protections. A worker has lesser protections than an employee, for example they cannot make an unfair dismissal claim. They are, however, protected against discrimination and harassment by their employer. A discrimination claim carries with it the potential for unlimited damages, which could prove fatal for a business undertaking.

Whistleblowing

The 2014 ruling, mentioned above, was in the context of whistleblowing over business activity that might constitute criminal activity, obstruction justice or harm the environment. As a result, an employer cannot take retaliatory action against a member on the basis of a good faith disclosure of information.

Consequences for partnerships and LLPs

As protections to partnership and LLP members expand, so too does the potential for claims being brought by aggrieved members. Worker and employee rights are protected by statute and can only be waived through formal settlement agreements. Leaving a partnership or LLP vulnerable to legal action has potential consequences for business reputation in additional to becoming involved in costly and time-consuming litigation.

Contact our Employment Law Solicitors London Today

At Lewis Nedas, our Employment Law Solicitors have over 25 years’ experience in advising and representing national and international companies. Our Employment Lawyers have joined the Office Essential Network, which is a specialist organisation aimed at assisting young start-up businesses requiring advice on employment issues, including for partnerships and LLPs.

To speak to one of our Employment Specialists, please call us on 02073872032 or complete our online enquiry form.

The Human Rights Act 1998 serves to incorporate the guarantees under the European Convention on Human Rights into UK domestic law, including the employment field. The Convention enshrines a range of rights relating to life, personal freedom, fair and impartial trials, private and family life, and freedoms of thought, conscience and religion and freedom of association. There is also a broad provision against discrimination on the basis of:

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

The effect of the Human Rights Act 1998 is that individuals can bring claims in domestic courts against public bodies, including the police, education authorities, hospitals and local authorities, that their Convention rights have been violated. They can rely on the case law of the European Court of Human Rights.

In many cases a private entity will be performing a public function. This will usually include cases where a public authority procures a private entity to perform one of its functions. As a result, the private entity can also be subject to claims on the basis of Convention rights.

It is imperative to note that even if a private employer does not fall within either category, they can still be subject to claims under other statutory protections for employees, including the Equality Act 2010 and Data Protection Act 1998.

Inviolable and qualified rights

Certain rights, such as against torture and inhuman and degrading treatment, can never be justifiably infringed. These are known as inviolable rights. On the other hand, rights such as freedom of association, speech, liberty and religious adherence can be properly restricted if such measures satisfy the following:

  • Prescribed by law: the laws authorising the measure must be precise, certain, transparent and accessible to citizens. It must be foreseeable that one’s conduct is sanctionable. If a public authority is afforded discretion, the scope must be clearly spelled out.
  • Necessary in a democratic society: the measure must be one that is indispensable and in response to a pressing social need that would occur in a modern democracy.
  • Proportionate in light of the aim pursued: the measure must have been the least restrictive means of achieving the purported aim.
  • Fall within the state’s “margin of appreciation”: case law of the European Court of Human Rights has determined that states are afforded some leeway where there is a lack of Europe-wide consensus on an issue.

Remedies

Under the Human Rights Act 1998, a court has the power to award monetary damages as “just satisfaction” for a breach of convention rights. A court can also strike down as incompatible with Convention rights any non-primary legislative acts and regulations.

Jurisdiction for claims

The provisions of the Human Rights Act 1998 extend to all persons present within the UK, including non-citizens and persons without lawful immigration status.

Contact our Employment Law Solicitors London Today

At Lewis Nedas, our Employment Law Solicitors have over 25 years’ experience advising and representing national and international companies. Our Employment Lawyers have joined the Office Essential Network, which is a specialist organisation aimed at assisting young start-up businesses requiring advice on employment issues, including human rights claims.

To speak to one of our Employment Specialists, please call us on 02073872032 or complete our online enquiry form.

The Equality Act 2010 protects individuals who are pregnant or have been pregnant in the past. If an employer discriminates on either basis, the employee can bring a claim before the employment tribunal.

Both employer and employee should be aware of the statutory rights and benefits available from the point an employee becomes pregnant, as well as the requisite notice periods that must be adhered to in order to claim them.

Maternity leave periods

A 26-week period of maternity leave is available from the point an employee gives birth. This is known as Ordinary Maternity Leave (OML). If an employee returns to work after this period, they are entitled to reinstatement to their prior position. An employer cannot make an employee redundant on the basis of their OML.

Beyond the initial OML period, there is a further 26-week period called Additional Maternity Leave (AML). If an employee decides to return to work after OML but during AML, if it is not reasonably practical to return them to their former post, a suitable accommodation can be offered.

An employee is entitled to both OML and AML periods from the outset of their employment, and there is no probationary period required.

Compulsory maternity leave

It is important to note that it is illegal for an employee to return to work within 2 weeks after giving birth, and neither an employer nor employee can waive this prohibition.

Statutory Maternity Pay period

Within the first 39 weeks of an OML/AML period, the employee will be entitled to Statutory Maternity Pay (SMP) from their employer. An employee must have been already working for the employer when they became pregnant in order to qualify for SMP, and they must receive the equivalent of £113 per week in pay up to the 15th week before the child is due to be born. If an employee does not fulfil this amount, they are still entitled to a number of government provided maternity benefits and allowances.

Shared Parental Leave

An employee is entitled to Shared Parental Leave (SPL), which allows an employee to replace their OML/AML period with SPL and their Statutory Maternity Pay with Statutory Shared Parental Pay (ShPP). Both partners can divide leave periods between one another.

A single parent cannot claim SPL, and both partners must have been continually working up to the 15th week prior to birth of the child. As with SMP, both partners have to meet the £113 per week equivalent pay threshold.

Notice periods

Maternity leave

An employee must inform their employer that they are pregnant 15 or more weeks before their baby is due to be born. The employee must inform their employer that they are pregnant, when the child will be born and the date they anticipate commencing maternity leave. From the point an employer is aware that their employee is pregnant, the employee has a right to claim time off for antenatal care and for health and safety accommodations to be made.

If the employee is unable to give notice within this period, delay may be waived if notice is given as soon as reasonably practical.

There is a presumption that an individual will wish to take both OML and AML periods, amounting to 52 weeks. If an employee wishes to return to work before this period ends, they must provide at least 8 weeks’ notice prior to the date they anticipate doing so.

Statutory Maternity Pay (SMP)

To be entitled to SMP, an employee must provide at least 28 days’ notice prior to the date they wish to begin receiving SMP. The employer must respond to the employee within this period with notice of when they expect the employee to return to work. SMP will in most cases commence on the date the employee begins their maternity leave.

Within 15 weeks before the employee gives birth, even if the employee is at this point made redundant, they will still be entitled to claim the full 39 days SMP from their employer.

Shared Parental Leave (SPL)

If an employee wishes to take SPL, the employee must provide at least 8 weeks’ notice to their employer.

Distinction between employee and worker

For individuals who are not employees, there are weaker protections afforded. For those with worker status, unless provided for by contract, they will not be entitled to OML if they are already pregnant when they start work. However, an agency worker who has been working for 12 weeks with the same employer is entitled to paid time off for antenatal care. 

 Breastfeeding at work

An employee is not entitled to time off for the purpose of breastfeeding but an employer is bound by anti-discrimination law to make accommodations at work, otherwise they can expose themselves to sex discrimination claims.

Burden of proof for discrimination actions

An employee making a discrimination claim must show that they have suffered unfavourable treatment due to their pregnancy or having previously been pregnant.

In order to show treatment has been unfavourable, an individual is not required to show that the treatment was unfavourable by comparison with someone who was not or has never been pregnant.

Contact our Pregnancy Rights Solicitors London Today

The law surrounding maternity and parental leave entails a number of statutory deadlines and hurdles for employers to grasp in order to properly run their business. It is highly advisable to consult an employment solicitor from the outset of a business undertaking to ensure that appropriate policies are in place and that employees are fully informed of their rights.

At Lewis Nedas, our Employment Law Solicitors have over 25 years’ experience advising and representing national and international companies. Our Employment Lawyers have been appointed to the Office Essential Network, which is a specialist organisation aimed at assisting young start-up businesses requiring advice on employment issues, pregnancy and maternity rights.

To speak to one of our Employment Specialists, please call us on 02073872032 or complete our online enquiry form.

It is always advisable to strive to resolve workplace disputes through informal means, such as discussions in private, in order to ensure continuity in good working relationships and avoid disrupting the day-to-day operations of a business. Where issues cannot be resolved, resort can be had to more formal proceedings, including grievance procedures.

All employers should have a grievance procedure in place to properly handle formal complaints lodged by employees. The UK’s Advisory and Conciliation Service (ACAS) provides a Code of Practice that should be adhered to by employers. The Code is not legally binding but if a dispute leads to a claim being brought before the employment tribunal, a judge will look favourably upon an employer’s efforts to meet the recommendations in the Code when reaching their decision.

Grievance procedures

An employer’s grievance procedure should detail how employees can lodge formal complaints in writing, to whom formal complaints should be sent to and the process of meeting with the employer to go over points of contention. Information on the appeals procedure should also be provided.

Components of grievance procedures 

The ACAS Code has two core recommendations. The first is that informal action should be prioritised “wherever possible”, and the second is that mediation should be considered at all stages of the formal process.

It is important to make clear where informal proceedings have ended and more formal proceedings have been entered into, so as not to infringe on an employee’s rights, including the right to be accompanied at a grievance meeting.

Written notice to employer

Formal proceedings are commenced through a written grievance letter to the employer with a statement of facts. The facts should be sufficiently detailed to allow the employer to investigate the matter.

The employee may wish to request personal information about them held by the employer. This is done by means of Subject Access Requests (SARs), which features a written request accompanied by a small administrative fee. Such a request must be reasonable and proportionate. The employer will have a maximum of 40 days to respond to the request.

Grievance meeting

Upon receipt of a grievance letter, the employer should endeavour to hold a meeting without unreasonable delay. Up to five working days is usually considered reasonable. The tone of the meeting should be one that fosters an amicable agreement between the parties.

Right to be accompanied

When attending a grievance meeting, and an appeal, the employee has the right to be accompanied by either a colleague or a trade union representative. The right will apply where the meeting concerns “a complaint about a duty owed by [the employer] to a worker”. The employee’s request to be accompanied must be a reasonable one, and the individual sought to accompany cannot have a vested interest in the outcome of the proceedings.

A colleague who is requested to accompany is entitled to paid time off in order to fulfil their duty. If the employee is disabled, they can be accompanied by a further person to assist them as a reasonable accommodation under the Equality Act 2010.

Written decision

Upon conclusion of the meeting, the employer must provide written notification of their decision as to what action they are taking and how the employee can appeal their decision. This is usually done within 24 hours of the grievance meeting.

Appeals

Employers must have an appeals process in place and fully inform employees of any time limits for making their appeal and their right to be accompanied. An employee will appeal the written decision of the employer in writing.

It is highly preferably for a member of management who has not been involved in prior proceedings to consider the appeal. Upon conclusion, the employer must issue a final written decision on the outcome.

Mediation

Mediation is the process of appointing an independent third party, a mediator, to the employer and employee who oversees the parties’ conciliation efforts. The process is done on a voluntary basis, and the mediator does not issue a binding decision. Mediation is a highly successful method of resolving workplace disputes.

Collective grievance processes

Employers should note the difference where more than one employee raises grievance procedures at the same time. In such instances, recourse should be had to collective grievance processes. Collective grievance procedures are normally accounted for in collective bargaining agreements entered into by the employer.

Claims before the employment tribunal

If an employer does not adhere to the ACAS Code in conducting formal grievance proceedings, the employment tribunal has the power to upwards adjust compensation awards by 25%.

Time limit for claims

If an employee wishes to resort to a claim before the employment tribunal, they must do so within three months less one day of the date of the incident giving rise to the claim. An employee does not have to exhaust grievance proceedings before making such a claim, but opting out may result in a reduced award to the employee if their case is successful.

Contact our Grievance Procedure Solicitors London Today

To avoid disruption of day-to-day business operations, it is always advisable to resolve issues through informal proceedings. If an employee eventually brings a claim before the employment tribunal, an employee can guard against an unfavourable ruling through adherence to formal grievance procedures outlined in the ACAS Code. It is highly advisable to consult an employment solicitor from the outset of a business undertaking to ensure that appropriate policies are in place and that employees are fully informed of their rights.

At Lewis Nedas, our Employment Law Solicitors have over 25 years’ experience advising and representing national and international companies. Our employment lawyers have been appointed to the Office Essential Network, which is a specialist organisation aimed at assisting young start-up businesses requiring advice on employment issues and contracts.

To speak to one of our Employment Specialists, please call us on 02073872032 or complete our online enquiry form.

In the UK, equal pay between men and women for equal work is provided for by the Equality Act 2010. There are a number of statutory requirements to be satisfied in order to successfully defend claims for unjustifiable differences in pay for certain roles.

It is highly advisable to conduct ongoing gender-neutral evaluation of jobs and pay structure in order to meet the requirements of the Equality Act.

Definition of equal pay

The term equal pay goes beyond basic remuneration, and covers bonuses, overtime, redundancy pay, pension schemes, company benefits and sick pay.

Definition of equal work

For the purpose of the Equality Act, “equal work” is determined by three methods:

  • Like work – refers to work that is the same or similar to that performed by someone of the opposite sex in either the same place of employment or one operating under the same terms and conditions.
  • Equivalence as determined by a Fair Job Evaluation Scheme – the Fair Evaluation Scheme is a means of determining the relative value of a position, taking into account the skills, training and level of decision making required. These schemes are discussed further below.
  • Work of equal value – neither of the above two categories apply, but the position is of an overall equal value in terms of skills, training and level of decision making.

Justification for differences

It is possible for an employer to justify differences in pay or other benefits, if they can show there are practical differences or factors warranting higher or lower levels of importance being attached to that position. Common examples are where strength and physical labour are required. A higher volume of workload alone cannot serve as justification.

Comparators

If there is no comparator in the same place of employment, it is possible to base a discrimination claim on a hypothetical comparator, if there is reason to believe someone of the opposite sex would receive better pay.

Disclosure and data protection

The Equality Act permits a claimant to seek information on pay packages to fellow employees, even where confidentiality clauses exist in their employment contracts. This is subject to limitations however, and in most cases an order has to be granted by the employment tribunal for information disclosure. In any event, where the handling of personal data is concerned, the core principles of the Data Protection Act 1998 must be adhered to, including fair and unlawful processing, accuracy and secure handling.

What individuals do the equal pay provisions apply to?

The provisions of the Equality Act apply to:

(1) employees;

(2) workers;

(3) self-employed individuals performing contractual obligations personally.

The Equality Act applies to both men and women. Although less frequent, there are occasions where a man might be paid less favourably.

Gender pay gap reporting and large entities

In 2017, two regulatory frameworks were enacted pursuant to the Equality Act, with one applying to the public sector and the other private. The regulations apply to private and public employers who hold 250 or more employees, and require such employers to publish data on gender pay gaps as they apply to the individuals covered by the Equality Act.

There are some differences between the regulations for private and public entities. The annual “snapshot” period for gathering data is 31 March for the public sector, and 5 April for the private sector.

Types of data to be published

Entities captured by the regulations must report on differences between the mean and median hourly wage gap and bonuses between male and female employees. They are also required to report on the proportion of male and female employees occupying lower to upper pay bands.

Failure to comply with the reporting requirements may result in sanction by the Equality and Human Rights Commission.

Job Evaluation Schemes

It is advisable to have a grasp of the relative value of positions operated. Job Evaluation Schemes are a method of internally accounting for and justifying why a position occupies a certain pay grade. The Equality Act does not mandate such evaluations, but they are a common means of satisfying the requirements of the Act. The Equality and Human Rights Commission provides a range of elements to be considered, including responsibility for others, specialist knowledge and training, physical requirements and decision making.

An evaluation should be carried out by a panel of three or more persons, which should represent the gender, ethnic and age breakdown of the workforce. The panel should possess satisfactory knowledge of the entity’s job and pay structure. It is paramount to conduct ongoing monitoring of a Scheme implemented, including the continued updating of job descriptors and provision of justification for any differential treatment.

Remedies

The employment tribunal is empowered with ordering remedial measures such as increasing salary, awarding back pay, instating benefits on parity with other male employees and amending contractual terms and conditions. Where back pay is considered appropriate, this can be done to a period of up to six years prior to the date of filing a claim before the employment tribunal.

Time limits for bringing a claim

Claims on equal pay grounds must be made before the employment tribunal within six months from the end of the claimant’s tenure. This prescription period can be tolled in the event that the claimant is incapacitated, or the employer has intentionally concealed pay disparities.

Contact our Equal Pay Solicitors London Today

There are a number of ongoing evaluative, monitoring and reporting requirements created by the Equality Act 2010 that must be adhered to by employers. Failure to do so may result in sanction by the Equality and Human Rights Commission, or a claim being brought by an employee before the employment tribunal.

At Lewis Nedas, our Employment Law Solicitors have over 25 years’ experience advising and representing national and international companies. Our Employment Lawyers have been appointed to the Office Essential Network, which is a specialist organisation aimed at assisting young start-up businesses requiring advice on employment issues, including equal pay legislation and regulations.

For further information or to speak to one of our Employment Specialists, please call us on 02073872032 or complete our online enquiry form.

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