Key HR Facts – – Statutory Rights and Tribunal Awards

Key HR Facts  [updated 09/04/2019]
 (Previous rates are shown in brackets)

Below is a summary of the minimum statutory rights and awards and fines that a Tribunal may make.

Some awards are subject to a cap on a week’s pay of £525 pw  (£508).

Always check whether the contract or written particulars of employment give better terms or ways in which an entitlement may be exercised.

ACAS Code – Breaches Leading to Fines

If an award is made by a Tribunal and there has been a breach of an ACAS code by the Employer, the Tribunal may increase the compensation  awarded to the Claimant by 25%.

A unreasonable breach of a Code by an employee could lead to a reduction of 25% of an award.

The above does not apply to redundancies nor the expiry and non renewal of a fixed term contract.

Accompanied to Formal Meetings

An individual has the right to be accompanied to a disciplinary or grievance hearing or a statutory request for flexible working.  The right only allows the companion to be either a TU representative or a  colleague from the individual’s workplace.

Failure to allow an employee to be accompanied  = award £1,050 (£1,016)

Aggravated Conduct by an Employer – Fines

If an employer loses a Tribunal case in which there are “aggravating features” such as deliberate, malicious or negligent behaviour or a long breach or repeated breaches, the Tribunal may fine an employer between £100 and £5,000.  The fine is irrespective of the nature of the remedy that was awarded to the claimant.  (The penalty may be reduced by 50% if is paid within a specified period).

Breach of Contract

Maximum award by an Employment Tribunal = £25,000.
Higher Awards may be made for claims brought in the High or County Court.

Contracts/Written Particulars of Employment

Written particulars of employment should be provided for:
–  New staff  – within 2 months of their start date;
–  Existing staff – within 1 month of the effective date of any changes to the terms.

Service Requirement – one month to be entitled to receive written particulars even if the individual is not employed longer than one month.

Failure to Give a Written Statement of Particulars – an individual may request a Tribunal to determine all the particulars which should have been issued or only to determine one or more of the particulars.

Awards – a failure alone does not give rise to a monetary award by a Tribunal but it may do if there is another breach of an employment right in which case additional compenation may be awarded of:

2 weeks pay £1,050  (£1,016 ) or, if just and equitable, 4 weeks pay  £2,100  (£2,032 ).

Fines against an Employer for a Breach of Employment Rights

An employer may be fined if the breach has aggravating features such as malice or negligence on the part of the employer.  Large employers are more likely to face such fines.  An Employment Tribunal may raise a fine:

  • Normally at 50% of the value of any compensation awarded but the minimum and maximum amounts of a fine are £100 and £5,000;
  • A fine may be raised even if no compensatory award is made;
  • The fine is paid to the government not the individual.

Furthermore, a  fine may be imposed if an award by a Tribunal has not been paid.   The employer will be warned in writing that if it is not paid within a set period (the maximum period is 28 days) a penalty notice may be issued of 50% of the award subject to the minimum of £100 and maximum of £5,000.

Fines against an Employer for Unpaid Employment Tribunal Awards

A failure to pay or a delay in paying an award made by an Employment Tribunal to an individual may result in a fine:

  • Normally at 50% of the value of any compensation awarded but the minimum and maximum amounts of a fine are £100 and £5,000;
  • The fine is paid to the government not the individual;
  • A delay in payment e.g. waiting to decide whether to appeal may lead to a fine.

Flexible Working

There is a statutory right to request a flexible working arrangement:

–  Only one request can be made in a 12 month period;
–  A request must be in writing and give specified information;
–  Managers must consider the request earnestly;
–  A request may be declined for business reasons set out in the regulations

Qualifying Conditions
–  An individual must have at least 26 weeks of continuous service to make a valid request.

A Tribunal may Order:

  • Reconsideration of the request and/or;
  • Compensation up to 8 weeks of pay  £4,200  (£4,064)

Guarantee Pay

Maximum = £29  (£28) per day
Limit of 5 days pay in any 3 month rolling period.

Living Wage   [from November 2018]

This is different from the Statutory Minimum Wage below.  The Living Wage is a voluntary agreement by an employer to pay a set pay rate to all staff aged 18 or over .  The rates from 5th November 2018 are:

London   £10.55  (£10.20);   Elsewhere  £9.00 (£8.75).

Employers who agree to pay The Living Wage are expected to implement payment by 1st May of the following year.

National Minimum Wage

25 years and over **         £8.21    (£7.83)
** The above rate  is known as the National Living Wage.
21 to 24 year olds              £7.70    (£7.38)
18 to 20 year olds             £6.15   (£5.90)
16 to 17 year olds              £4.35   (£4.20)   

Apprentices

Under 19 =  £3.90  (£3.70) per hour.
Aged 19 or older in the first year of their apprenticeship = £3.90  (£3.70) per hour.

Other Apprentices, who have completed the first year of their apprenticeship, should be paid the statutory minimum hourly rate according to their age.

Living Accommodation offset 
£7.55 per day maximum (£7.00)  – the rules vary in some circumstances.

Note that the new rates come into effect from 1st April but only have to be paid from the start of the employee’s/worker’s normal first full pay period that occurs on or after 1st April.

National Minimum Wage – Sanctions for Underpayment

–  A 200% fine is payable of the amount underpaid unless that is paid within 14 days;
–  The minimum fine is £100 and the maximum £20,000.

The maximum may be imposed upon an employer for each worker who is underpaid.  A director of a company which fails to pay the NM Wage may be banned for up to 15 years

An organisation/trader may be named and shamed publicly in some instances.

Notice Periods

Minimum periods are set by statute but an employer may give longer periods – see your written particulars/statement of terms.

Notice to be given by Employer to Employee

Statutory entitlement is based upon the length of continuous service with the employer:

–  Under 1 month’s service – no statutory notice requirement
–  Between 1 month and up to 2 year’s service  = notice of 1 week
–  2 year’s continuous service = notice of 2 weeks
–  3 year’s continuous service = notice of 3 weeks
–  4 year’s continuous service = notice of 4 weeks

After 4 years service, the notice period increases by 1 week for each complete year of continuous service until the maximum notice entitlement is reached of 12 weeks for 12 or more years continuous service.

Notice to be given by Employee to Employer

The statutory requirement is:

–  Under one month’s continuous service = no period of notice required.
–  Over one month’s continuous service = notice of 1 week.

The individual’s contract/written particulars of employment may set out longer notice periods which the employer will give and/or an employee must give.

Protective Award

Usually for a failure to consult an employee in a redundancy situation or a transfer of an undertaking.   The awards differ:

  • failure to consult in a transfer of an undertaking (TUPE) – up to 13 weeks pay;
  • failure to consult in a redundancy situation – up to 90 days pay.

Redundancy  – Pay

Redundancy pay depends on the individual’s age when made redundant, length of continuous service and amount of weekly pay.

Qualifying Condition
An individual must have 2 or more years continuous service

Calculation Criteria
Up to £525  (£508) pay per week can be can be taken into account.
Up to  20 years continuous service can be counted (only complete years count).

The individual’s age also affects the amount of redundancy pay as below:

–  Years of service age 41 and upwards count for one and a half week’s pay.
–  Years of service between ages of 22 and 40 inclusive count for one week’s pay.
–  Years of service under 22 count for half a week’s pay.

The maximum redundancy amount is £15,750  (£15,240).

Most payments are smaller as to gain the maximum amount you need to  have 20 years continuous service from the age 41 or over and your earnings would need to be £525 or more per week.  Hence the maximum payment of 20 weeks x 1.5 weeks x £525 = £15,750.

Redundancy – Consultation Periods

Consultation period before the first dismissal:

30 days if 20 or more employees affected;
45 days if 100 or more employees affected.

Must consult with recognised trade union or if none with existing employee representatives or body or if none arrange election of employee representatives for this purpose.

Specific information has to be provided during the consultation process to the TU or representatives.

 Consultation with a Recognised Trade Union

Collective Redundancies – Failure to Consult TU or Inadequate Consultation
–  Protective Award = up to maximum of 90 days gross pay per employee affected.
–  Only the Trade Union or elected employee representatives can initiate a claim.
–  Employees must have been made redundant before claim initiated.

Training of Employees
–  Failure to consult TU =  £1,016   (£978)

Trade Unions and  Membership

Unjustified exclusion or expulsion
–  Range minimum £9,787  (£9,474) to maximum  £98,922   (£95,211)

Unjustifiable discipline by a trade union of a member

The two grounds above can be made as separate claims but only one amount of compensation will be awarded.

Unlawful inducement re membership, TU activities or collective bargaining –

A mandatory amount must be awarded – minimum £41,93  (4,059)

Unfair Dismissal Claims

Minimum Qualifying Conditions

No minimum service requirement for the following types of claims:
–  Dismissal related to pregnancy or maternity;
–  Unfair selection for redundancy because of pregnancy or redundancy;
–  Whistleblowing claims;
–  Asserting a statutory right;
–  Refusal to carry out duties due to health and safety reasons;
–  Refusal to work in a shop on a Sunday if a protected worker.

Other Claims require:
–   2 year’s continuous service if you are engaged on or since 6th April 2012;
–   1 year’s continuous service if employed before 6th April 2012.

Excluded Individuals:
–  The following can not claim unfair dismissal:
–  self employed, agency workers, Police and Armed Services regular dock workers,
–  overseas workers, foreign government personnel, profit share fishermen.

Time Limit:
Claims must be initiated with 3 months (less 1 day) of the effective date of termiation of the last person to be made redundant

Unfair Dismissal – Potential Award     

There are several elements to an award, for example:

Basic award
This is calculated similarly to redundancy pay.

  • Maximum = £15,750   (£15,240 ) – in some circumstances, there is no maximum limit.
  • Minimum basic award = £6,408  (£6,203).  This applies only to unfair dismissal cases related to being: a safety representative or an employee representative, a trustee of an occupational pension scheme, membership of or taking part in the activities of a trade union.

Compensatory award

Maximum – is whichever is the lower of £86,444  (£83,682 ) or 52 weeks gross pay of the claimant.
The limit does not apply in certain cases e.g. dismissals for health & safety or protected disclosure (whistleblowing) reasons.

Additional Award
Only awarded in particular circumstances such as a failure to:
–  Reinstate or re-engage £13,650 to £27,300   (£13,208 to £26,416);
–  Consider a flexible working request £4,200    (£4,064);
–  Inform or consult on a TUPE transfer = up to 13 weeks gross pay  (the statutory cap on a week’s pay does not apply).

Discrimination Awards – Injury to Feelings  [2019 rates]

In addition to an award for an unfair dismissal, claimants may also be compensated for injury to their feelings.  There are four bands.  The rates below apply to claims issued on or after 6 April 2018:

  • Lower band:   £900 to £8,800 (£800 to £8,400) – less serious cases -. isolated act or one off occurrence.
  • Middle band:  £8,800 to £26,300  (£8,400 to £25,200) – serious but not meriting award in the highest band.
  • Upper band:   £26,300 to £44,000  (£25,200 to £42,000) – most serious cases – e.g. a lengthy campaign of discriminatory harassment.
  • Exceptional cases: over £44,000.

Tribunal Fees Payable by A Claimant

Fees charged to a claimant are no longer payable

Written Particulars of Employment – see earlier Contracts/Written Particulars of Employment.

Important Note

Key HR Facts are given in good faith but do not constitute legal advice as we are not aware of the particular circumstances that you have in mind. Neither the author, Company, directors or employees accept liability for the use of the information.

See other Key HR Facts pages – Statutory Leave and Pay and Working Arrangements