The importance of ensuring an employer keeps an eye on employees holiday entitlement is imperative to ensure the smooth running of a business. Depending on the size of the business this should be reviewed on a monthly or at the least a quarterly basis.
Under a lot of contracts of employments if a employee does not use their holiday entitlement within the year then they will lose it. At the same time an employer cannot afford to have all their staff absent on holiday leave at the same time and therefore getting a fair balance is imperative.
Employees have the right to a minimum of 5.6 working weeks of annual leave per annum, however and most crucially they do not have the automatic entitlement to choose when they must take the time off.
The Working Time Regulations 1998 stipulates that employers always have the right to allocate holiday leave to an employee. If needed the employer can serve a notice on an employee stipulating that the employee is required to take their holiday on a specified date. In order for this to be effective the employer must give the employer reasonable notice. The next question that is often asked by an employer is what constitutes “reasonable notice.” The legislation states that the notice period issued by an employer should be double the length of the annual leave that the employer wishes the employee to have, by way of example if the employer is asking their employee to take 7 days holiday they need to issue 14 days notice to the employee.
It is highly recommended that provisions for holiday leave are dealt with in the contract of employment, the advantage that this gives an employer is that it allows them to keep control and plan for busy periods of time. It is possible that an employer can state longer periods of notice for holiday leave above and beyond the statutory requirements, however, an employer should be conscious of the practicalities of this and be sympathetic to emergency situations. There could be a scenario where an employer is only able to provide shorter notice than their contract of employment provides and this does not mean that the employer can automatically deny such a request as to do so may be deemed to be “unreasonable.” However, under normal circumstances if the employee does not comply with their notice requirements then an employer should honour such a request.
An alternative approach adopted by some employers is to stipulate when an employee cannot take time off, for example, at an extremely busy time for the business such as Christmas or Easter etc. If such a term is clearly stipulated in the contract of employment then any such holiday requests can be justifiably refused. However, the caveat to this is where such a refusal would result in the employee losing the opportunity to take such holidays at a later point in the year and they would as a result lose their holiday entitlement.
The above blog sets out the importance of not only dealing with holiday requests but also the importance of ensuring all employees have a fair contract of employment to avoid any unnecessary disputes and unhappy employees. As a rule of thumb all parties should try and give as much notice as possible to avoid any dispute with the Regulations.

At some stage we will all be faced with the issue of being unable to resolve a dispute and there may be the need to bring or indeed defend a small claim.

Before you start a claim it is helpful to examine what has happened and what action you can take and then what action you should take.  Going to court should only ever be a last resort when all other avenues have failed.

Sometimes it is possible to do nothing, going to court is a highly time consuming, potentially expensive and stressful time. It may be that on the balance of probabilities the matter is not worth spending time and energy on. Even if you were to issue a claim and be successful you need to examine the other sides financial position to ensure that they would be able to pay.

If you do decide to go to court then the judge will wish to see evidence that you have attempted to avoid the need to use court time, so for example have you tried to speak to the other side to resolve the issue, have you issued a formal letter before action? Alternatively have you considered mediation. This is where a third party meets with both sides and talks through the issue in dispute with a view to arriving at a resolution where both parties are happy. Further there may a regulator who you can complain to in the first instance and seek their involvement. If all else fails and you wish to bring a claim or indeed need to defend a claim then you must ensure the civil procedural rules are followed.

A small claim is a case that has been allocated by the court to the small claims track in the county court. There are three different “tracks” within the court system, namely, small, fast and multi-track.  This blog deals with small claims. If you have a case which is one of the other two you should consult a legal advisor for further information.

A person who brings a claim is called a “claimant” and the the person who defends a claim is called a “defendant.

A small action claim is classed as a civil claim and is subject to following the Civil Procedural Rules. A civil claim is heard by either the county court or the High Court.

Small claims cases are typically claims for lower values and less complex cases, for example claims for compensation for faulty services i.e. Builders providing defective services or the claim may be for a faulty good such as a defective motor vehicle or a television etc or for unpaid bills.  Disputes between a landlord and tenant are also heard by the small claims court, for example where there is outstanding rent or maybe a compensation payment for not doing specific repairs.

When you issue your claim you do not need to decide which “track” your case will be allocated to, this is dealt with by a district judge and they make this decision for you as part of the case management. They decide which “track” your case is best suited to based upon the value of the claim and how complex the case may be. You will also need to complete a Directions Questionnaire setting out your preference.

Any cases which are of a criminal nature cannot be heard in the small claims court.

There are a number of costs involved in court proceedings, firstly court fees. This is the amount you need to pay the court for issuing a claim or indeed for arranging a hearing. If you win your case the judge will generally order that the other side pay the original court fees and maybe any incidental costs/expenses of attending the hearing on that date. If you have had to instruct an expert as part of the proceedings then the court may also order that these be reimbursed as well. However, unlike most civil claims, under the small claims track there is generally no order for a person to recover their legal costs e.g solicitors costs even if they win. For this reason most people tend to bring a small claim and represent themselves due to the prohibitive costs usually associated with getting a solicitor involved. However, there are now a number of online legal organisations who can assist you in preparing or defending a claim and do not charge very much for their service. The court does reserve a discretion that if a person brings a case and they are unsuccessful, or if as a defendant you put the other side to huge trouble and then lose the court can make an award for costs  and you will need to pay the full costs that the other side have incurred.

On this basis it is always worth spending time to ensure you are fully aware of the correct legal position. If you have any doubt as to the correct legal position it is always worth seeking professional advice as soon as possible even if following the advice you decide to represent yourself. Ignorance of the law is no defence!

My Employer Has Refused To Give A Reference, What Can I Do?

We would recently instructed on a case where an ex-employee had put forward their former employers details for a reference without getting the former employers agreement.  The employer did not wish to provide a reference for the ex-employee.  In this blog we look at the legal position on references.

 

Employers are not obliged nor are they subject to any statutory obligation to provide a reference for an employee, however, it is accepted good practice that most employers would provide such a reference.

 

There is of course as with most areas of law an exception to the rule.  If an employer is regulated by the Financial Conduct Authority (FCA) then they are legally obliged to respond to a reference request and provide such a reference within a reasonable period of time.  The reference must include all relevant information that the employer holds on the employee.

 

Even if the Employer is not regulated by the FCA, quite often Contracts of Employment contain clauses which dictate what the respective parties obligations are in relation to references.  Other times it may have been agreed in writing between the employee and employer at the point of cessation of employment to provide a reference, in such a case the employer is bound to provide a reference and failure to do so could result in a claim by the ex-employee.

 

In some circumstances, there may be an implied duty on the employer to provide a reference based upon past custom best practice.

 

It would be unlawful victimisation to refuse a reference because, for example, someone has brought discrimination proceedings.

 

If the employer does provide a reference, the employer needs to ensure to take reasonable steps to ensure the reference is fair.  In the event that a reference was deemed to be discriminatory then the ex-employee may be able to bring a claim against his ex-employer and potentially his new employer.

 

An employee could make an application under the Data Protection Act for a copy of all the information held by the employer regarding the employee and hence use this tool as a way to review any references released by the former employer.

 

If in doubt an employer should seek legal advice when providing a reference.  Only information which is non discriminatory and factual should be included.  If an employee has a disability which resulted in a lot of time away from work then this should not be included in the reference to avoid any claim against the employer.

 

The former employer has a duty of care to the potential new employer to give truthful and accurate information.  Any such breach could result in a double claim from both the ex-employee and the prospective employer if it is argued that the reference is negligent and the new employer as a result suffers financial loss.

 

There are no set templates or precedents to use for a reference.  An employer can provide as much or as little information as they desire. Many employers have a policy of only providing a reference with very basic information e.g. dates of employment and job title.

 

If in doubt seek advice from a specialist before sending the reference.