Employers and employees often fail to follow the strict legal requirements of employment law. There are many reasons why this happens: struggling with the minefield of difficult and complex legislation is high on the list. Some employers are tempted by the opportunity to take what they see as a bit of a chance, while others take a more considered attitude to legislation that simply does not work for them in practice or has little financial consequence. Commercial business rationale may also demand such an approach. Here are 10 examples of common lapses:
Statement of employment particulars
By Section 1 of the Employment Rights Act 1996 (as amended), the employer is required to provide a written statement of the basic terms of employment, but there is no independent award for an employer's failure to provide the statement. A claim of between two and four weeks' pay may only be made when it is attached to another action, such as unfair dismissal. Employee representative bodies, including many of the mainstream unions, have seen this as a weak tool to ensure that uncertainties in contract terms are not exploited by the more unscrupulous employers.
Breach of the notice period
Mitigation of loss is said to be the bane of employees. Those who have been wrongfully dismissed must still provide evidence that they have made all reasonable efforts to mitigate their loss before they receive their compensation. However, this applies equally to employers. If an employee walks out on their contract, it is the employer who must prove any loss and deal with the difficult evidential burden of showing how it sought to mitigate the loss.
The recent case of Penwell Publishing Ltd v Isles has highlighted the difficulties faced by those who wrongly assume that contacts kept on the employer's computer system belong to them. The law seeks to balance the free market against reasonable protections for the employer. When staff leave and join competitors or set up in competition, whether because of ignorance of the law or being tempted to take a risk, it is not unusual to see highly contentious battles commence.
With increasingly sophisticated IT solutions now available to track and trace where data is stored and utilised, employers appear to be gaining the upper hand in unearthing such actions. However, litigation can be a pyrrhic victo