Month: June 2015

Redundancy: What An Employer Needs To Know

/ Karen / Leave a comment

GDaly

Gerry Daly is the Employment Law Partner in Francis Hanna & Co Solicitors with almost 40 years experience in this field.
In his guest blog for Life Law NI, he has set out some of the factors that employers need to consider when dealing with possible redundancies within their business
As many of you already know and others are unfortunately going to find out in the current economic climate, downsizing your business and considering redundancies is a prospect you may have to face.
This is a grim prospect for you as a business owner but more particularly for your affected employees.
It is therefore vital that you as an employer handle this process fairly and in a manner that protects you from any potential unfair dismissal claims made by your employees.

What do I need to look at when considering redundancies?

When handling redundancies, you will be deemed to be acting fairly both morally and legally if you treat the matter with ‘RESPECT’, that is;-

R = Redundancy

You must be able to show that a genuine redundancy situation exists in your business

E = Employees

You should ensure that your employees are fully consulted about the redundancy situation.

S = Selection

You must use objective and verifiable criteria when you are considering which roles are to be made redundant

P = Procedure

You should follow the 3 step dismissal procedure:-

  1. Inform the employee in writing of the circumstances which are leading to you considering redundancies, invite them to a meeting to discuss the matter and warn them that a possible outcome is dismissal.
  2. Hold a meeting with the employee to discuss the proposed redundancies. An outcome of the meeting must be provided and your employee must be informed of their right of appeal.
  3. If your employee chooses to exercise the right of appeal, an appeal hearing must be held and a final decision provided
E = Employment

You should consider whether there are any alternative job roles that could be filled by those being made redundant in order to avoid the redundancy.

C = Calculation

You need to ensure that the correct redundancy payment is calculated

T = Termination

You must ensure that a letter is sent to the employee confirming the end of their employment

The underlying legal principle when considering redundancies is that of reasonableness – i.e. have you as an employer behaved reasonably in all of the circumstances towards your employee when handling their redundancy?

Before embarking on this process you should ask yourself whether you need independent legal advice.
My recommendation is that you should instruct an employment lawyer to handle the process. This will ensure that it is handled objectively and not contaminated with emotion which could end up costing you dearly.

Gerry Daly

Francis Hanna & Co Solicitors

If you wish to contact Gerry for more information on this area, please contact him at gdaly@fhanna.co.uk or alternatively let us have your comments below.

 


Holiday Pay – Making Sure You Know Your Rights

/ Karen / Leave a comment

By Mary Gavin,

Employment Law Solicitor, Francis Hanna & Co

holidaySummer is almost here and if you’re anything like me you are counting the days until you can dust off the sunglasses , stick your ‘out of office’ on and head off to sunnier climates for a well deserved break!

But before you go, are you aware of what your legal entitlement to holiday leave and pay is?

How much holiday pay am I entitled to?

Workers have a right by law to at least 5.6 weeks paid annual leave – this is basically 28 days paid holiday for a five day working week.   This right comes from the Working Time Regulations (NI) 1998.

The main things you should know about your rights to holiday leave are:
  • You should get a minimum of 5.6 weeks paid annual leave if you work full time.
  • If you are a part-time worker, you are entitled to the same level of holiday pro rata.
  • Your entitlement to holiday pay starts to build as soon as you start work.
  • Your employer can control when your holidays are taken.
  • If you leave your job, annual leave days that you have accrued but not taken will be paid.
  • Your employer can include bank and/or public holidays as part of the 5.6 weeks leave.
  • You are entitled to holiday leave throughout ordinary and additional maternity leave, paternity and adoption leave
Should commission be included in my holiday pay?

When you are off on holiday, you are entitled to be paid your normal salary.

However, there was a recent case (known as Z.J.R Lock v British Gas Trading Ltd and Others) where the European Court looked at whether holiday pay should only be based on normal salary or whether it should include commission also.

The Court decided that there was an entitlement to holiday pay based on both normal salary and commission as otherwise it would put people off taking holidays if they were to lose out on commission payments.

This case is still ongoing as the manner in which commission is calculated has yet to be finalised by the Court.

Should overtime be included in my holiday pay?

There was recently the case of Bear Scotland & Ors v Fulton & Ors which concerned whether or not overtime payments should be included in the calculation of holiday pay or not. It was held that guaranteed overtime payments were to be included in holiday pay.

Each case must be looked at on its own facts and therefore it would be necessary to seek legal advice if you had any query about how much holiday pay you are entitled to.
Happy Holidays!
If you require any further information this area, please feel free to contact Mary at mgavin@fhanna.co.uk or leave your comments below.

Getting a Divorce? On what grounds?

/ Karen / 3 Comments

divorce-cake“Divorce isn’t such a tragedy. A tragedy’s staying in an unhappy marriage, teaching your children the wrong things about love. Nobody ever died of divorce.”   

This may be something I read in a cheesy chick book, but there’s a lot of truth in it!

Sometimes, for one reason or another, marriages just don’t work.
It is an unfortunate statistic that here in Northern Ireland, one in four marriages ends in divorce

Many people, particularly older generations, feel that divorce has become somewhat ‘fashionable’ these days and that it is too ‘easy’ for couples to get divorced.

Whilst some could argue that there may be a little truth in that given the statistics, it is by no means the case that any Tom Dick or Harry (or their female counterparts!) can simply get a divorce.

What do I need to show before I can get a divorce?

In Northern Ireland, in order to get a divorce, you firstly need to have been married at least 2 years to your spouse.

This doesn’t mean that you are compelled to continue living with your spouse for a full 2 years – you can of course live separately. However you will not be in a position to apply (or as it’s called in the profession ‘petition’) for divorce until you’ve been married at least 2 years.

Then, either you may be able to petition for divorce so long as they can show that their marriage has ‘irretrievably broken down.’

The ‘grounds’ for divorce

There are five ‘grounds’ for divorce – one of which you must satisfy in order to get a divorce.

  1. Unreasonable Behaviour

To get a divorce on this ground, you need to show the Court that your husband’/wife has behaved so unreasonably that you can no longer be expected to live with them.

Types of unreasonable behaviour are wide ranging and can include, for example, physical or verbal aggression, lack of communication, financial control or misconduct and addictions.

  1. Adultery

In order to petition for divorce on the ground of adultery, you need to show the Court that your husband/wife has committed adultery during the course of the marriage.

The person with whom your partner had the affair can be joined and named in the Divorce Petition also.

  1. Two Years Separation With Consent

This is available where both you and your partner have lived separately for more than two years and your partner consents to the divorce. You can have been living in the same property during this time but must have lived independently to one another. This can happen where, for example, you both live in the same house but have separate bedrooms and would not cook or clean or spend time with one another.

  1. Desertion for Two Years

This occurs is where your partner has effectively ‘deserted’ you. This ground is technically difficult to prove and is very rarely relied upon in divorce proceedings.

  1. Five Years Separation

This ground is available where you and your partner have lived separate for more than five years. You do not require your partner’s consent on this ground.

Many people think that the law surrounding divorce is outdated – that if you are able to freely enter into a marriage, you should be able to freely get out of it again, without the law dictating how and when you can do this.
As it stands at the moment though, any person wishing to divorce their partner in Northern Ireland will need to satisfy one of the grounds above.
We would be interested to know your thoughts on this –
Perhaps you have been unable to get divorced yet because you do not presently satisfy any of the grounds?
Maybe you think that having criteria in this way to restrict divorce is a good thing?? Please let us know your views on this topic below.

If you need any further information on divorce please contact us or feel free to leave a comment below.

Father’s Rights

/ Karen / 3 Comments

fathersrightsnew

Father’s Day is a celebration of fatherhood, paternal bonds and the influence of fathers in our lives.  It’s a day when children lavish daddy with cards, gifts, hugs and kisses and where fathers celebrate both the joys and rewards of having children.

Of course, the role of being a dad extends above and beyond one particular day and as any dad will know, along with the rewards of having children comes a lifetime of responsibility. It is the job of both parents to ensure that this responsibility is taken seriously and exercised in the best interests of their children.

This can sometimes be difficult to achieve when the parent’s relationship breaks down. Separation, particularly when the father and child no longer live together, can leave daddy feeling like his role in his child’s life is somehow diminished and less important.

This does not have to be the case. As a father, you can have Parental Responsibility for your child

What is Parental Responsibility?

Parental Responsibility is the legal term for the rights of each parent to be involved in making decisions in the best interest of their children.

It is defined in the Children (NI) Order 1995 as ‘all rights, duties, powers and responsibilities and authority which by law a parent has in relation to the child and his property.’

Do I have Parental Responsibility?

If you are married to the mother at the time of the child’s birth, you automatically get Parental Responsibility.

If you and the child’s mother are not married, Parental Responsibility is not automatic but you can get it n the following ways:-

  • If your child is born after December 2003 and you are named on the birth certificate
  • Through a formal written agreement with the mother
  • By obtaining a Parental Responsibility Order from the Court
  • By having a Residence Order in respect of your child.

What difference does having Parental Responsibility make?

Parental Responsibility is not a label to be worn by a father.

In practical terms, this responsibility gives you as the child’s father the right, for example,

  • To be involved in choosing their school
  • To be kept informed of their progress at school and sent copies of school reports.
  • To give consent to medical treatment
  • To determine your child’s religion
  • To be involved in choosing their child’s name and to agree any change in surname.

I have separated from my child’s mother – do I still have rights?

The short answer is yes.

Parental Responsibility goes some way to ensuring that you can continue to have a pro-active and beneficial input into your child’s life.

Where parents separate, it will often be the case that they can work out themselves where their children are to live and how much time they will spend with each parent.

However, if you cannot agree arrangement with your child’s mother, then you can apply to the Court and ask it to make decisions that are deemed to be in the best interests of your child.

  • The Court can decide where and with whom your child should live. This is known as a Residence Order.
  • In some cases, the Court may make a Joint Residence Order in favour of both parents, where the contact arrangements are such that your child will be spending time living in both your home and their mum’s home.
  • If your child lives with mum, the Court can decide on how much contact you can have with your child. This is known as Contact Orders.
Although in an ideal world it is better where possible for parents to agree issues concerning their children, the law is there to guarantee your child’s right to enjoy a relationship with both parents where this is in their best interests.

For further information on this topic, please feel free to contact Karen or Claire or alternatively leave us your comments below.

 

Unfair Dismissal – Your Questions Answered

/ Karen / 3 Comments

you're firedGenerally speaking, in life your main concern is likely to be both your own and your family’s health and wellbeing.  If that’s in place then our next focus tends to be our jobs.

It makes sense – most of us (unfortunately!) spend the majority of our time each week working.   Many of us are lucky enough to enjoy what we do for a living – many of us far from enjoy it! But either way, we all work to pay the bills and have money for the things we want to do in life.

Should things go wrong at work, it often causes worry and stress but, what can you do?  

Worst case scenario: You are sacked by your employer.

You may ask yourself:-

“How will I pay the bills?

”How will I get another job?” 

“How can they do this to me?”

The Jobs and Benefits Office can help with the first two questions but I can help with the third.

If you are asking yourself how they can do this to you, you are also probably thinking that the reason and how you were sacked was unfair. Unfair dismissal is by far the most common query I deal with, but that does not in itself make it straightforward problem.

I have listed some of the most common queries below should you find yourself in this position:-

Do I have the right to claim unfair dismissal?

In order to claim that you were unfairly dismissed, you must firstly have worked for at least one year with your current employer – if you haven’t you unfortunately don’t have the right to make a claim. There are exceptions to this rule (for example, if you feel you were discriminated against) however the general rule is that if you’ve been in your job less than one year, you can’t claim unfair dismissal.

Is my dismissal unfair?

Whether a dismissal is unfair depends on whether the employer had a fair reason to end your employment. If they did have a fair reason to dismiss you, it must also be considered whether the matter was dealt with fairly. If you believe that neither the dismissal nor the way it was dealt with was fair, you may have a claim against your employer.

What is a fair reason for dismissal?

An employer can fairly dismiss an employee for one of the following reasons

  • Capability – it was thought that you were not capable of doing the job
  • Conduct – you have behaved in a way that makes it reasonable for you to be dismissed
  • Redundancy – your job is no longer required
  • Some other substantial reason – for example, business re-organisation.

It is for your employer to show what the reason for the dismissal was.

In addition to showing that the dismissal was fair and reasonable, your employer would also have to show that a fair procedure had been followed.

Is there a time limit for making a claim?

Yes, a claim for unfair dismissal must be brought within 3 months of the date of your dismissal. This is a short and strict time limit! You should therefore seek advice as soon as possible once you have been dismissed as otherwise a potential claim may be out of time and you would be prevented from taking a case against your former employer.

MGavinThis guest blog comes from Mary Gavin, Associate Solicitor in the Employment Law Department of Francis Hanna & Co Solicitors.  If you have any further questions about unfair dismissal or require any further advice on this area, Mary Gavin can be contacted at Francis Hanna & Co Solicitors or by email on mgavin@fhanna.co.uk

As always, we love to hear your thoughts. Please feel free to leave us your comments below.