As a solicitor specialising in employment law, I get asked a lot of questions both from employers and employees. That’s part of why I enjoy my job – I like solving people’s problems!
But there are some questions that employment solicitors get asked more than any other (or at least I do!), so I thought it would be worth writing a blog about three of the most popular.
1. Can I sack someone who’s off sick?
Like a lot of questions, the answer to this one is very straightforward – it depends!
Incapacity to carry out the job due to an illness is a potentially fair reason for dismissing someone. However, there are a few traps for the unwary.
Make sure you check the contract and the staff handbook. What do these say about sickness absence?
Have you obtained up to date medical information, such as a report from an occupational health specialist?
Don’t forget the ACAS Code of Practice – it applies to sickness dismissals.
For more information, check out this blog post about the procedure for dismissing someone who’s off sick.
2. I’m being bullied at work – what should I do?
There’s no law against your employer bullying you.
What?!?!? That doesn’t sound right! Well, I’m afraid it is.
But that doesn’t mean your employer can get away with it. The bullying may amount to a breach of your employer’s duty of trust and confidence towards you. If it’s sufficiently serious, you may be able to resign and bring a claim against your employer. However, the claim would be for constructive dismissal and the lost earnings resulting from that (provided you’ve been employed at least 2 years). There wouldn’t usually be a claim resulting from the bullying alone.
Sometimes, the bullying may be sufficiently serious that it leads to the employee having a breakdown. That, in turn, may lead to a claim for personal injuries in respect of the psychiatric harm. However, this isn’t easy to prove. Among other things, you would need to prove:
- a recognised psychiatric condition, such as a nervous breakdown or PTSD
- the condition was caused by your employer and not some other factor
- your employer knew that their actions were causing psychiatric harm
- they failed to do anything about it.
If the bullying is on the grounds of a protected characteristic, this would amount to harassment. You may be able to claim compensation for injury to feelings.
Often the best thing you can do if you feel you’re being bullied at work is to raise a written grievance. This may help to resolve it but if it doesn’t it will certainly help in any future claim you may have.
3. Can I stop ex-employees from going to work for a competitor?
Many employers are concerned that their staff may leave and then take their hard earned customers to a competitor. Is there any way of preventing this?
A well drafted employment contract will contain restrictions on what employees can and can’t do when they leave. This can include:
- restricting them from working for a competitor
- preventing the ex-employee from poaching customers, suppliers or staff
- guarding confidential information
These types of restrictions are enforceable as long as they are no more restrictive than necessary. The law balances the needs of the employer to protect their business with the right of the employee to pursue their career.
You may want to read this blog post for more details about when restrictive covenants may be enforceable.
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