Five Things an Employer Needs to Know About Employment Law

It is a unavoidable demand of running any business that an employer must have a good knowledge of employment law whether they are self employed and/or employ other staff. They should have an awareness of the rights of the employee, the employer themselves and where each party stands in the unfortunate event that the normal working relationship breaks down. This article addresses the five key areas that employers and HR departments need to consider when dealing with employment law in the UK.

1. How You Define Employees and Employers

It is important, before delving into the intricacies of employment law to have a clear idea of the parties that are involved and how their roles should be defined.

Employed vs Self Employed: This distinction can be less apparent than you may think. If a worker has agreed to provide a service/work under contract for an organisation then they will be a worker employed by that organisation unless the organisation is actually employing the services of that individual’s business, in which case the worker is self-employed and thus not a direct employee of the organisation. An example of such a scenario would be a contractor who offers his services to an employer via his own business rather than agree a direct contract of employment himself.

Part Time vs Full time: This is a heavily contextualised concept as the hours a full time employee works in one organisation could be the same as the hours worked by a part time employee in another. Once an organisation has set the hours that a full time employee is expected to work, a part time employee is defined as a worker employed on the same contractual basis but for reduced hours.

The key thing to remember here is that part time employees should not be treated any less favourably in comparison to their full time counterparts purely because of the difference in hours that they work, unless their hours are a justifiable factor in the decision process. For example, pay should always be awarded on a pro-rata basis for part time workers in comparison to an equivalent full time role. Employees have the right to challenge and demand written explanations if they think that they are being treated differently on this basis alone.

Temporary vs Permanent: This distinction depends upon the contract of employment which we will discuss later on. The temporary or fixed term worker will have a contract which agrees their employment for a fixed period of time as opposed to a ongoing permanent relationship. As with part time workers, temporary workers must not be treated any differently to their permanent counterparts purely on the basis that they are on fixed term contracts.

2. Statutory Rights

These are the rules that govern and provide the framework for how you will need to deal with your staff from the start of the recruitment process to the cessation of the contract of employment. They cover not only the definitions of employment types mentioned above but every other area of individuals’ rights in the work place. They are too broad and detailed to discuss in their entirety here but, in summary, include:

Pay

Minimum Pay – Rates for over 16s, varying for different age groups

Equal Pay – Contracts for women employees must include the same pay and benefits as that of a man in an equivalent role

Pay Slips – To be itemised and provided before or on the date of pay

Discrimination – Employees must not be discriminated against based upon “protected characteristics” such as age and sex. Provisions must be in place for disabled workers

Equality Act 2010 – Employers do have the right to choose between two candidates of equal ability on such a characteristic if it is under-represented amongst their staff

Working Hours

Maximum Working Week – 48 hours, regular breaks etc. Opt outs can be agreed but not demanded

Flexible Working – Parents of children up to 18 years old have a right to apply to changes to their hours and work location which an employer can only refuse if specific circumstances are met

Parental Leave

Maternity Leave – 26 weeks ordinary and 26 weeks additional entitlement

Paternity Leave – 2 weeks entitlement with additional 26 weeks when mothers return to work

Absence

Sickness – Statutory sick pay entitlement etc

Compassionate Leave – Employees have a right to time off (but not pay) if they have illness or death in the immediate family

Whistleblowing – Protection for some disclosures in specific circumstances which would otherwise breach the employee’s contract

Workplace Health & Safety (see below)

Redundancy – When an employee’s role is no longer required

Statutory Pay

Notice Period

Relocation Opportunities

TUPE – Conditions of employment must be transferred in the event of a take over.

Pensions – Most employers must offer employees a stakeholder pension provision

Dismissal & Disciplinary

Unfair Dismissal – The employer must have a fair reason (e.g., employee conduct) to dismiss an employee with 1 years employment and must follow a fair dismissal procedure. Some reasons for dismissal will qualify to be considered as automatic unfair dismissals such as union action, time off for parenting etc

Wrongful Dismissal – Notice must be given by all parties (unless a fixed term contract is lapsing) as set out in common law

Constructive Dismissal – If an employer breaks the terms of a contract and consequently forces an employee’s dismissal

Retirement – The Default Retirement Age is ultimately due to be scrapped by Oct 2011 although there are certain measures already in place to reach this end (Retirement is therefore no longer a fair reason for dismissal).

One of the most essential things to remember with statutory rights is that they are regularly changing. As an employer or HR worker you must remain familiar with the latest developments.

3. The Contract

Perhaps the most important element of any employer-employee relationship is the contract of employment. All parties will have certain statutory rights as mentioned above but the finer details and practicalities of the relationship will be contained in the employment contract. The contract will determine the procedures to follow in the event of staff under-performance or disciplinary proceedings, any employee benefits and concessions above and beyond their statutory entitlements (e.g., maternity leave, compassionate leave) and ultimately the conditions and processes of releasing staff either through dismissal, redundancy or resignation.

4. Trade Unions

If you are an employer of more than 21 individuals you may be approached by a trade union seeking recognition from your organisation. The Trade Union needs to show that it has a 10% representation in your workforce and that those members wish your organisation to acknowledge it. You will have 10 days to respond to the request otherwise you will have effectively rejected the approach. In the event of rejection the Trade Union can apply to Central Arbitration Committee to force you to accept their approach for recognition. Once a Trade Union has been recognised, an employee is entitled to take part in industrial action organised by the union (for a period of up to eight weeks) if the industrial action was called for by an official Trade Union ballot. Any dismissals resulting from this action would automatically qualify for unfair dismissal.

5. Health And Safety

An employer is obliged by common law to provide a safe working environment and to ensure that their workers are fully competent in the roles they are filling. However employers are also bound by statutory requirements which reinforce these obligations and the fact that all employees must, at all times, be fully capable, be trained in the safety procedures that they must follow and be aware of the Health & Safety Act 1974.

To this end employers are also required to perform regular assessments of the risk in the workplace, not only to their own employees but any other individuals who may be affected. Employers of at least five members of staff must document these assessments and are in addition required to produce a documented health and safety policy which is communicated to all members of staff.

There are many more requirements that an employer must be aware of to fulfill these objectives and specific additional regulations which apply to particular industries and workplaces.

As you can see employment law is a very broad and nuanced topic and it takes a fair amount of effort and time to become familiar with it. Therefore, if you are in doubt, or you need guidance on a specific circumstance you should seek advice from a qualified employment law specialist, such as Employment Solicitors Basingstoke to make sure you take the easiest and most economical path to a resolution.

Employment Law Solicitors in Stockport Can Help Resolve Employment Issues

A business or organisation is setup with the aim of carrying out a service or producing a product, and in return it generates revenue for the business owner. The owner in turn will distribute or pay some percentage of the revenue to the employees in the form of salaries as they will have contributed considerably to achieving the productivity or service delivery. This is the normal way of running a business and this system is centuries old. However sometimes things don’t always go right, sometimes you could find yourself in legal hot water, that’s where an expert team of Employment law solicitors in Stockport come in, able to offer solutions to employment related issues and allow employers run their business properly.

Everyone involved in your business needs to pull their weight to achieve the targets and standards required of them, failure to do this could spell trouble for your business. The business of employing staff is fraught with various potential problems that employers need to manage carefully, and within the letter of the law, some of those issues could prove difficult without the help of employment law solicitors. Cases of disobedience, absenteeism, damage to company property, use of violence in the company premises, and a range of other minor or even major misdemeanors can crop up and it is important that those cases are resolved without them getting out of hand.

Non-payment of wages, unfair dismissal, safety issues during employment, refusal of leave on medical grounds, and other unfair practices adapted by employers are sometimes faced by employees and the expert Employment law solicitors in Stockport are equally proficient in dealing with them. The legal firm is powered by experienced and expert employment law solicitors who will work hard on your behalf to get what is right and what is fair for you.

Having a legal counsel in the form of employment solicitors is always advisable regardless of whether you are an employer or an employee. The expert and experienced Employment law solicitors in Stockport understand the stress and uncertainty both parties feel when it comes to dealing with aspects of employment law, they will work with you to prevent the issue from escalating into a full-fledged legal battle in the court and to get a fair settlement or agreement for you.Arbitration is often the best solution for both employers and employees as they won’t have to go to the courts to resolve their issues.

Attorney Negligence: Did It Cost You Your Case?

Attorney Negligence: Did It Cost You Your Case?

Statistics show that legal malpractice claims have become more frequent for the last three decades. There are several instances where a client loses confidence in the abilities of his lawyer because the latter made matters worse instead of providing a resolution to the problem. If you suffered damages due to your lawyer’s wrongful conduct, may it be due to his negligence or intentional act, you may consider the option of bringing a legal malpractice action. However, proving a legal malpractice claim could be challenging as it often involves extensive search for appropriate arguments and corroborating evidence. Despite the existence of actual damages, there are other factors that need to be examined to determine whether a claim of legal malpractice should be filed.

Damages

If the client can prove that the attorney’s negligence or wrongful act resulted in damages, such damages could be recovered by filing a legal malpractice lawsuit. However, there are cases where damages are not easily ascertainable. In such cases, the California Supreme Court held that recovery of damages could still be awarded even if the existence and the cause of such damages are difficult to determine. On the most part, however, damages that are based on speculation or mere threat of future harm are usually not awarded by California courts.

Clients are likely to be more successful with the recovery of so-called “direct” damages. These are damages that have been the direct result of an attorney’s negligence or misconduct. For instance, in a case where an attorney wrongfully advises his client to file for bankruptcy and sell his home for a lower price than its market value, the court is likely to award the client damages to the extent of what he lost from the sale. In another case, a California court awarded damages to a physician due to the loss of his good reputation and the increase in premiums for his medical malpractice insurance due to his attorney’s negligence.

If the client can show clear and convincing evidence that the attorney can be held liable for fraud, malice or oppression, even punitive damages may be recovered, see California Civil Code § 3294. However, client-plaintiffs who have been denied the award of compensatory damages will not be entitled to punitive damages. In general, it is more difficult to prove the existence of punitive damages as courts usually require specific facts to prove that the attorney acted with oppression, fraud or malice. In one rare case, the court of appeals awarded punitive damages due to an attorney’s “conscious disregard of plaintiff’s safety”. In that case, the attorney, who was also a physician, advised his client to postpone the surgery in order to strengthen their medical malpractice lawsuit even though he knew about the urgency of a surgery.

Furthermore, if the client-plaintiff lost his claim for punitive damages in the underlying action, it is very unlikely that courts will award him punitive damages in a legal malpractice lawsuit. The California Supreme Court held that such damages are based on speculation and plaintiffs should not be entitled to damages that cannot be proven with certainty. Otherwise, lawyers would be exposed to more risks of liability, resulting in an increase in the cost of malpractice insurance.

Attorney Negligence

In a legal malpractice action based on the attorney’s negligence, the courts will look into four factors. First, the client-plaintiff needs to show that the attorney-defendant has the obligation to apply the skill, prudence and diligence required from his profession. Second, there has to be proof that the attorney failed to fulfill the above mentioned duty. Third, the client-plaintiff also needs to show that the attorney’s breach of his duty resulted in the damages he suffered. Lastly, as mentioned above, the client-plaintiff needs to present evidence of the existence of such damages and not just mere speculation. According to the California Supreme Court, client-plaintiffs who are facing criminal charges need to prove their actual innocence before they can bring an action against their attorneys. This way, the clients who have been found guilty by a criminal court would not be allowed to go after their attorneys and recover civil damages. An exception to this rule is a malpractice action that is not based on the quality of legal services provided by the attorney. For instance, a fee dispute between the client and the attorney can still be pursued in court even if the client was charged by a criminal court because such a dispute merely involves the attorney’s billing practices.

Typical Cases of Malpractice

The most common basis of malpractice action is the failure of an attorney to adhere to the deadlines set by the Code of Civil Procedure as well as other statutory filing deadlines. As mentioned above, attorneys are expected to apply the required skill, prudence and diligence in providing legal services. The failure to file a lawsuit, initiate a proceeding or bring an action within the so-called statutes of limitation could constitute a strong claim for legal malpractice.

An attorney can also be held liable if the court in the underlying case issues a default judgment against his client due to his failure to file a pleading, see California Code of Civil Procedure § 585. Furthermore, if he fails to relieve his client from the default by filing a motion in a timely manner, namely within six months after the issuance of the default judgment, the client would have another ground to file a malpractice lawsuit against him assuming that the motion could have been successful.

It is also possible to hold an attorney liable for not raising viable defenses in a legal action. In such cases, however, the client-plaintiff needs to show that the defenses that were not asserted can be proven in court and would have led to a more favorable result. In one case, for instance, a California court denied the award of damages to the plaintiff because the attorney decided to leave out weak defenses.

In general, attorneys have an obligation to adhere to their clients’ preferences particularly with regard to legal decisions involving their substantive rights. The failure to follow these instructions can be a basis for a malpractice action. In one case, for instance, a California court held an attorney liable for his failure to file a complaint despite of his client’s specific instructions to do so.

However, courts have held that an attorney can make decisions without his client’s consent if authority has been given in an agreement. Decisions involving procedural matters are also instances where attorneys can act independently. California courts have not yet drawn the line as to how to differentiate procedural matters and legal decisions. Thus, establishing a legal malpractice action based on the failure to adhere to clients’ instructions could pose several challenges. On the other hand, courts have consistently held that attorneys are not obliged to follow instructions that can result in an illegal or unethical conduct. Furthermore, an attorney can reject a case if he determines in good faith that the case lacks merit.

Another frequent basis for a legal malpractice action involves settlements. According to the California Rules of Professional Conduct, an attorney needs to provide his client specific information pertaining to the settlement such as the amount, and the terms and conditions of the offer, see California Rules of Professional Conduct Rule 3-510. To be successful with a malpractice action, a client-plaintiff needs to prove three things. First, there has to be evidence showing the attorney’s failure to inform the client about the settlement (or parts of the settlement). Second, the client-plaintiff needs to attest that he would have accepted the settlement offer if he had known about it (or had sufficient information about it). Last, evidence should be presented that the client would have benefited more from the settlement than the actual outcome of the case. The amount of damages in such a case will be determined by the difference between the actual outcome of the case and what the client-plaintiff would have received from the settlement offer.

Statutes of Limitation

In general, clients can file a legal malpractice lawsuit one year after the discovery of circumstances that support the malpractice claim or four years after the attorney’s act of misconduct, whichever comes first, see California Code Civil Procedure § 340.6(a). There are, however, exceptions to this general rule that could prolong the periods of limitation, giving plaintiffs more time to file a lawsuit. For instance, periods where the plaintiff is physically unable to bring a legal malpractice action against his attorney will be considered as tolled. The same applies to cases where the attorney-defendant is still representing the client-plaintiff in the same case where the attorney’s misconduct is at issue. In such cases, the time limit for bringing a legal malpractice action could be exceeded.

Seeking Legal Advice

The success of a legal malpractice lawsuit will mainly depend on the evidence and arguments which will support the claim that the attorney has been negligent in representing his client. Even procedural matters such as determining the applicable deadline could pose some challenges as well. Thus, in cases that involve complex issues, consulting a lawyer who is experienced in legal malpractice cases is inevitable in order to prevent the occurrence of further damages to the client.

Sources:
California Code of Civil Procedure
California Rules of Professional Conduct

For further reading:
George Lindahl J.D., California Torts, 2012
Suzan Herskowitz Singer, Attorney Responsibilities & Client Rights, 2003
Robert W. Schachner Esq., How & When to Sue Your Lawyer, What You Need to Know, 2005

Employment Law Is An Important Part Of Business Law

Business law is one of the branches of the huge field of law. There are many things one has to keep in mind when starting a business; let it be a small or a large business. Breaking these laws may land you in deep trouble, so it is always advisable to have some basic knowledge of both small business law and business corporate law. With this knowledge, you are sure of being able to run your business smoothly without any hindrance from the law whatsoever!

One of the most important areas to consider in business law is employment law. If you don’t comply with all the employment laws and regulations, it is highly likely that you will end up in lots of trouble! There are different laws that actually rule the employment basis of both the regular employees and the contract employees of a business. Some of the employment business laws that have to be met by you are FLSA, the Fair Labor Standards Act, The Immigration Reform and Control Act of 1986, Americans with Disabilities Act, the Civil Rights Act of 1966 and the Equal Pay Act of 1963. However, these laws are not connected to the various state employment business laws that you may find to your business! These laws are a different thing altogether. To confirm that your business meets all the employment laws, it is always better to checkup with your HR department.
To run a business, it is important to have a business permit or a license. If you do not have one, there is a high possibility of you having to shutdown your business and to pay hefty fines and penalties. Moreover, in addition to federal business law it is required that you meet the state business law regulations too. And if you have an international based business, you have to be aware of the different international business laws and how they can affect your business, you and your bottom line. You at least have to meet the general international business laws, import laws, any specialized export laws and laws of the country you maintain business with.

Those running online businesses may be of the impression that there are no business laws pertaining to the internet. However, this is not so. There are many internet and online business laws that have to be followed to maintain any online business. The reason for these laws is that the internet explosion over the past decade has forced the government to introduce internet compliance laws to maintain some law and regulation over the internet. So if you by any chance run a website make sure that you abide the internet business laws. If you don’t do so, there is a high possibility of your site being shut down and of you, in the mean time, facing criminal prosecution and huge fines.

Remember that it is not advisable for you to try and comply with all the business laws on your own. There are numerous laws, and the best mode of avoiding falling into any trap would be to get the help of some professional business law firm. These tips are just to give you an idea of the types of business laws existing. However, even if you do hire a business law firm, it is also better, and important for you to have some basic knowledge of business laws!

The Credentials of Any Good San Diego Criminal Defense Lawyer

The hallmark credentials that you want to see when hiring a San Diego criminal defense lawyer on a serious felony charge are pretty much the same for a criminal defense lawyer anywhere. When you are charged with a serious felony in a state court system where your exposure is many years in prison you don’t want someone “practicing” or dabbling on your matter. You want a consummate talented and respected professional that regularly handles the type of criminal charge that you are charged with.

The bottom line is that you want a lawyer with a winning reputation. The profile that makes up that type of lawyer consists of a number of characteristics. You want a lawyer that is well educated. While the law school a lawyer went to isn’t necessarily the characteristic that makes the difference, the better law schools produce lawyers who understand the theory of the law better which makes them better able to make arguments that persuade judges.

You also want a lawyer who has a good presence and who is respected in the courts. The more respected your lawyer is, the better he will be able to negotiate, win critical motions, and get rulings favorable to your case. A good lawyer who is respected in his community will be respected anywhere he or she goes to handle a case. The prosecutors and the judges get the picture quickly by the way the lawyer handles themselves.

You want a lawyer who has been practicing many years if your case is a serious felony such as murder, vehicular manslaughter, forcible rape, or child molestation. The more years a lawyer has practiced means that he or she has handled more situations, more cases, and more trials. That combined experience means that they will be able to analyze your case quicker and with more accuracy than a lesser experienced lawyer. Years of experience means they know all the moves and how to implement them effectively at the right moment.

Make sure your lawyer has successfully handled many cases of the type of charge you have. If you are charged with murder, for instance, you want a lawyer who has handled and tried several murder cases. A top gun lawyer should be able to cite several examples of jury trial results and favorable settlements in the type of case you have. There is no reason not to hire a lawyer with a long record of winning. Every lawyer has won a case or two. You want the lawyer with a long list of successful results.

In every major community in this country competent skilled professionals exist who are capable of getting you the best results. A little work trying to find one will be worth the effort. If you throw your money away on someone who isn’t up to the task you won’t find out until it is too late. You can always change lawyers but you may have spent all of your resources. Major Tip: Don’t ask people to refer you to a good lawyer. You may just be getting a friend or a business referral. Ask people: “Who are the five or ten best San Diego criminal defense lawyers to handle a serious state court felony trial case?” You will likely get a list of great lawyers. The good lawyers will all talk to you and you will be able to see the difference and choose who you are most comfortable with and can afford.