Employment

Recently Asked Questions

Q. How do I deal with bullying by my manager?

I am a trainee trader and although I enjoy my job, I dread going into work each day as my manager is a real bully. He shouts and swears at me in front of the rest of the floor and regularly belittles me and my work and makes me the butt of all his jokes. I don't want to lose my job but the situation is becoming unbearable. What would you advise?

A. How do I deal with bullying by my manager?

The first thing you should do is get hold of a copy of your company's grievance policy as this should tell you the company's policy for dealing with situations like this. That policy may well give a contact person for instances where individuals feel that they are being bullied or harassed by their direct line managers. If this is the case it might be worth you contacting them and speaking to them on a confidential basis to start with, not least because, if you have not worked for your company for a year you will not have unfair dismissal rights.

This could, rather unfairly, leave your job at risk if your manager finds out you have made a formal complaint against him. So, you might want to see if you can resolve the situation informally in the first instance if at all possible.

If you can't or don't want to go down the informal route, you should then raise a written grievance about your manager. Your company should then investigate your grievance, invite you to a meeting to discuss it, inform you in writing of the outcome and allow you to appeal their decision if you are not satisfied with it.

If the situation is still not resolved to your satisfaction (for example, the company refuse to deal with your grievance or unreasonably refuse to uphold it), you may wish to consider pursuing a claim against your manager and/or your company through the legal system. You have not provided any details as to why you think your manager is bullying you rather than someone else) or the kind of jokes and comments he makes about you, but if you feel you are being discriminated on the basis of your sex, race, disability, sexual orientation, religion or belief (or age from 1 October) you can potentially bring a complaint in the employment tribunal about it regardless of your length of service.

If your manager's treatment of you is not based on any of the above categories, you may still be able to bring a claim against him and your company under the Protection of Harassment Act 1997 in the civil courts.

Back to Top

Q. The stress of my job is making me ill, what can I do?

I am Head of Year in a secondary school and due to my teaching and administrative responsibilities I often have to work in excess of 60 hours a week. I am extremely stressed and feel I am drowning in paperwork. My health is beginning to suffer and my GP has recommended that I take some time off. I asked the Head Master for help 6 months ago but nothing has changed. I am at the end of my tether, what can I do?

A. The stress of my job is making me ill, what can I do?

Firstly, it may well be that by requiring you to work in excess of 48 hours a week your school is in breach of their obligations to you under the Working Time Regulations 1998. The general rule is that an employer cannot require an employee to work more than an average of 48 hours a week, unless the employee has agreed to 'opt out' of the Working Time Regulations. You should therefore check your contract of employment to see whether you have agreed to this.

Every employer has a common law duty of care to their employees to make sure their health and safety at work is safeguarded. If your health is suffering as a result of excessive working hours and / or your Head Teacher's failure to arrange help for you, your employer may be in breach of their common law duty to you and depending upon the severity of any detriment to your health you could potentially have a personal injury claim against your school also.

Finally, if your health has been impacted to such as extent that you fall within the definition of a disableds person under the Disability Discrimination Act 1995, you may also have a disability discrimination claim against the school and / or the Head Teacher. On a practical basis, for now we would suggest that you ask your GP to sign you off work as soon as possible and for as long as they think is necessary for your health to recover. At the same time your should send a written grievance to your employer and inform them of your health issues and that you believe they have been caused by excessive working hours as well as your Head Teacher's failure to act when you asked for help six months ago.

Your school should then invite you to a meeting to discuss your grievance and if you feel well enough it is important that you try to attend. Hopefully your health will improve if you are able to take some time off work and also if the issues at work are dealt with. However, if neither of these things happen you might want to consider whether you have sufficient grounds to issue a claim or claims against the school and/or the Head Teacher.

Back to Top

Q. Can my employer put me on garden leave?

I handed in my notice at work and was then told that I am to go on 'Gardening Leave' for the duration of my notice period. What is 'Gardening Leave' and can they do this?

A. Can my employer put me on garden leave?

Regardless of whether it is you or your employer who gives notice to terminate your employment, your employer may elect to place you on Gardening Leave. During a period of Gardening Leave you will not be required or permitted to attend work and may be restricted from contacting clients, business contacts and other employees. However, you will continue to be paid and receive full contractual benefits for the period of Gardening Leave.

Garden leave clauses are an effective way for employers to protect their business from the potential risks associated with a departing employee. By removing you from the workplace your employer can protect against the risk of you taking their clients and confidential business information with you.

If you are prevented from contacting your clients for several months, a new employee will have the opportunity of building up a relationship with them making it less likely that the client will want to follow you when you leave. Equally, if you are out of the workplace for several months, your knowledge of your employer's confidential business information will be several months out of date by the time you join your new employer making you less of a threat to your old employer.

Whether or not your employer has the right to put you on Gardening Leave usually depends upon whether there is a Gardening Leave clause in your written contract of employment. However a Gardening Leave clause can also be an implied term of your contract of employment if, for example, there is no requirement of your employer to allow you to actually perform work and/or where you hold a senior position in the business.

Generally, your employer will be required to permit you to perform work and will not be able to place you on Gardening Leave in three circumstances:

  1. Where there is an express contractual provision requiring them to permit you to work or to provide you with work;
  2. Where you have a skill which, if not practiced, will be lost;
  3. Where part of your remuneration consists of commission which is dependent upon work actually being done.

If you are unhappy about being placed on Gardening Leave (many employees quite like being paid whilst not being required to attend work!) we would recommend that you check your written contract of employment for a Gardening Leave clause. In the absence of one you will need to consider whether your situation falls into any of the examples given in (i) to (iii) above.

Back to Top

Q. Does my employer have to pay me my bonus if they know I am planning to leave?

I have found a new job and want to leave my current employer as soon as possible, but I am due to receive a bonus next month and don't want to jeopardise it. If I tell my employer I am leaving now will they be able to get away without paying me my bonus?

A. Does my employer have to pay me my bonus if they know I am planning to leave?

That will very much depend upon your employer's bonus scheme rules. These may be a separate written document, or contained within the staff handbook or your contract of employment. You should review these carefully as you may find that your employer has reserved the right not to pay bonuses to employees that have given notice and are serving out their notice at the time that bonuses are due to be paid.

You are also likely to find that your employer has expressly provided that entitlement to any bonuses paid is 'discretionary'. This effectively means that your employer has reserved the right not to pay you your bonus if they do not consider it appropriate to do so. If you tell your employer that you intend to leave them they may well decide to exercise their discretion not to pay you your bonus.

However, your employer will need to show that the decision not to pay you your bonus was not perverse and that they exercised their discretion not to pay in good faith. If your performance has been as good as previous years for which you were awarded a bonus, then you may be able to successfully argue that your employer's decision not to award you a bonus this time around is perverse and that since their decision not to pay is motivated by the fact that you are leaving they have not exercised their discretion in good faith.

Back to Top

Q. Can my employer make me work overseas?

I work for an international company and my boss has just advised me that they need me to go on secondment abroad for a year. I don't want to go and have told my company this, but they have advised that I have a mobility clause in my contract of employment and therefore do not have a choice. Please advise.

A. Can my employer make me work overseas?

The first thing for you to do is review your contract of employment to see whether it does in fact contain a mobility clause.

However, working on the assumption that it does contain such a clause you need to consider whether your Employer is complying with both express terms of the clause as well as the following implied terms which its operation is subject to:

  1. reasonable notice of any proposed move.
  2. an obligation to ensure that the proposed move is not impossible for the relevant Employee.
  3. the general duty not to destroy mutual trust and confidence between the Employer and Employee.

Overall, both parties are under a duty to act reasonably. This means that your Employer cannot rely on a mobility clause to make an unreasonable request for you to move and you cannot unreasonably refuse any reasonable request!

It is difficult to advise without knowing your particular circumstances, but things for you to consider would include;

  1. the fact that the move is limited in duration to a year (meaning the request is more likely to be deemed reasonable)
  2. any personal circumstances which would make it difficult for you to comply with the request (for example young children or other dependents that rely on your care)
  3. the amount of notice given of the proposed move.

Before agreeing to any move you should consider carefully the effect a move abroad may have on your employment rights. You may find that you lose your rights to claim unfair dismissal and discrimination under UK law and that your employment rights under the laws of the country you have moved to are less favourable.

Back to Top

Q. What tax liability will I have on my settlement monies?

I am in the process of leaving my current employer and they have offered me a substantial pay off tax free provided I sign a Compromise Agreement. Can they really pay me tax free and what are the ramifications of signing a Compromise Agreement?

A. What tax liability will I have on my settlement monies?

A Compromise Agreement is an agreement between an Employee and Employer (or ex-employer) under which:

  • the Employee promises to refrain from issuing or continuing with proceedings in the Court and/or Employment Tribunal: and
  • the Employer agrees to make a payment to the Employee in return for that promise.

The payment made by the Employer is known as a 'Termination payment'. The first £30,000 of any Termination Payment paid under a compromise Agreement can be paid tax free, provided that the payment represents compensation for loss of office as opposed to a contractual payment which the Employee would have been entitled to anyway, even if they had not entered into the Compromise Agreement.

Therefore, you need to consider why your Employer is asking you to enter into a Compromise Agreement in the first place. Has your Employer done or omitted to do anything which would entitle you to bring a claim in the Employment Tribunal and is the sum they are offering adequate consideration for you waiving your right to bring a claim against them? Secondly, you need to consider whether the Termination Payment they are offering can really be paid tax free or whether all or some elements of it are in fact taxable.

Sometimes an Employer will offer to wrap up a payment in lieu of notice and holiday pay into a Termination Payment and pay this tax free. However, pay in lieu of notice is sometimes taxable and holiday pay is always taxable. In order to enter into a Compromise Agreement you will have to seek the advice of a solicitor and they will be able to advise you on both these points. At Bolt Burdon we are experienced in advising employees receiving substantial Termination Payments in excess of £30,000 and, working with our in-house Independent Financial Advisers, we can assist you in receiving your compensation in the most tax efficient way.

Back to Top