Monthly Archives: January 2019

Employment Disputes

If you’re employing other people, there’s always a possibility that you may end up being involved in an employment dispute. In this article, we take a look at how a solicitor can help you to resolve employment disputes, should they arise.

The chances of being involved in an employment dispute can be minimised by ensuring that you follow the correct procedures when advertising vacancies, recruiting staff, drawing up terms and conditions of employment and making staff redundant. However, you may find that a member of staff is unhappy with an aspect of your employment and decides to take this further. Alternatively, you may be unsatisfied with an employee’s performance and decide to take action, in which case a dispute may arise.

Grievance and Disciplinary Proceedings

Most issues arising between an employer and employees should initially be dealt with through the employer’s internal grievance or disciplinary procedures. Therefore, it’s important that you provide details of these procedures in your company’s staff handbook and that all staff can access a copy of these easily. It’s also vital that your grievance and disciplinary procedures comply with current employment law, so it’s worth asking your employment solicitor to help you to draw them up and review them regularly.

If an employee decides to raise a grievance or you decide that you need to take disciplinary action in respect of an employee’s performance or behaviour, consult your employment solicitor as soon as possible. Your solicitor will be able to discuss the specific case with you and advise you about how best to proceed. By doing this, you can rest assured that you are complying with relevant employment law throughout the process.

Mediation, Conciliation and Arbitration

Issues between an employer and employee are often able to be resolved during an internal grievance or disciplinary procedure. However, sometimes further discussions are necessary. There are three main processes available – mediation, conciliation and arbitration.

Mediation involves the employer and employee discussing the situation with an independent party, known as a mediator. The mediator can often help the employer and employee to come to an agreement without needing to take the dispute to an employment tribunal. Conciliation is a very similar process, also involving a mediator. However, conciliation usually takes place when an employee is considering taking his or her employer to an employment tribunal or has already made a claim to an employment tribunal.

The third process, arbitration, is similar but the independent party involved, the arbitrator, listens to both sides of the dispute and makes a firm decision about the case.

Many firms of solicitors provide assistance with mediation, conciliation and arbitration processes and these can be quicker and cheaper solutions to employment disputes than going to an employment tribunal.

Employment Tribunals

If you are unable to settle a dispute with your employees, your employee may decide to make a claim and take you to an employment tribunal. At an employment tribunal, the case will be heard by a panel which will usually include a qualified employment judge and the panel will make a decision and decide whether compensation should be awarded. Employment tribunals hear cases relating to a number of different types of employment issues, including unfair dismissal, discrimination and breach of contract. Decisions made by an employment tribunal are legally binding.

If an employee decides to take their case to an employment tribunal, you should consult your employment solicitor as soon as possible. Your employment solicitor will be able to discuss the process with you, help you to prepare your case and represent you at the tribunal.

This article is intended as a general guide only and provides an overview of some of the legal issues that may need to be considered. It does not constitute legal advice and should not be relied upon as such. We recommend that you seek professional advice before taking action. No liability can be accepted by us for any action taken or not taken as a result of this information.

Thailand Employment

Termination of Employment

The Labour Protection Act B.E. 2541 (1998) (“the Act”) applies to all businesses operating in Thailand. The employer/employee relationship is regulated under Thai law, including matters relating to the termination of an employee.

The main reasons why Thailand employers may consider payroll cuts by terminating staff can be summarised briefly as economic, poor performance or misconduct.

It is common in the Thailand legal environment that the Labour Court tends to favour the employee and accordingly it is extremely important that business owners in Thailand adopt correct procedures insofar as termination of their employees.

Termination Payment Calculation Summary

The following is a summary of the quantum of severance pay which must be paid by an employer to an employee under Thai law if Section 118 of the Act is applied. This is calculated in accordance with the employee’s length of service.

120 days but less than 1 year – 30 days pay
1 year but less than 3 years – 90 days pay
3 years but less than 6 years – 180 days pay
6 years but less than 10 years – 240 days pay
more than 10 years – 300 days pay
Exclusions to Payment of Severance Pay

A. Short or Temporary Employment Periods

Labour laws in Thailand afford business owners certain exclusions from the requirement to pay severance payments if the following conditions apply:
An employee has served the company for less than 120 days.
An employee whose employment is stipulated in a contract set for a definite period and the employment is terminated at the end of that period, if this form of employment is in compliance with the Thai labour laws and regulations (Section 118 of the Act).

Employment with a definite period is allowed only for the following categories;
Employment on a specific project which is not the normal business of the employer;
Employment for occasional or temporary work; and,
Seasonal employment.

A written employment contract is required for the above with clauses stipulating the commencement and completion dates. In addition, all tasks must be completed within two years.

B. Termination with Cause

Under Section 119 of the Act, there are certain exceptions which enable an employer to avoid the payment of severance to an employee and which are as follows:-

The employee performs dishonestly or intentionally commits an offence against the employer;
The employee intentionally causes the employer to suffer loss;
The employee causes serious damage to the employer as a result of negligence;
The employee violates the employer’s working rules or regulations or the employer’s orders which are legal and fair where the employer has already given the employee a written warning, except in a serious situation where the employer is not required to provide a warning;
The employee neglects to complete his or her duties by not attending work without justifiable reason for three consecutive working days; and,
The employee has spent time in prison by final judgement, with the exception of negligence or petty offences.
The exceptions to which employers are liable for severance pay are stipulated in Section 119 (1) – (6) of the Act.

If the employer terminates the employment contract of the employee for other grounds, the employee is entitled to receive severance pay.

Nevertheless, to terminate the employment of any employee on the grounds stipulated in Section 119 of the Act, the employer must provide a letter of termination to the employee with the reasons for termination. Note that in accordance with Thai law, the reasons provided must be real or relate to the actions for termination of employment.

Special Severance Pay

In the case where an employer relocates the place of business in Thailand which affects the normal living of an employee or his/her family, the employer shall notify the employee at least 30 days before the date of relocation. Thai law allows the employee to refuse to move and become entitled to receive severance pay. Failure to notify the employee may result in a special severance payment in lieu of the advance notice of 30 days.

With respect to the termination of the employment on the basis of reorganising the Thailand based business, production line, sales or services due to the adoption of machinery or technologies which result in a reduction of the number of employees, the employer has a duty in compliance with Thai law (Section 121 of the Act) to notify the employee as well as the labour inspector not less than 60 days prior to the contemplated date of termination. Failure to do so will result in a special severance payment in lieu of the advance notice of 60 days being paid in addition to the normal severance pay.

Five Things an Employer Needs to Know About Employment

It is an unavoidable demand of running any business that an employer must have a good knowledge of employment law whether they are self employed and/or employ other staff. They should have an awareness of the rights of the employee, the employer themselves and where each party stands in the unfortunate event that the normal working relationship breaks down. This article addresses the five key areas that employers and HR departments need to consider when dealing with employment law in the UK.

1. How You Define Employees and Employers
It is important, before delving into the intricacies of employment law to have a clear idea of the parties that are involved and how their roles should be defined.

    • Employed vs Self Employed: This distinction can be less apparent than you may think. If a worker has agreed to provide a service/work under contract for an organisation then they will be a worker employed by that organisation unless the organisation is actually employing the services of that individual’s business, in which case the worker is self-employed and thus not a direct employee of the organisation. An example of such a scenario would be a contractor who offers his services to an employer via his own business rather than agree a direct contract of employment himself.

    • Part Time vs Full time: This is a heavily contextualised concept as the hours a full time employee works in one organisation could be the same as the hours worked by a part time employee in another. Once an organisation has set the hours that a full time employee is expected to work, a part time employee is defined as a worker employed on the same contractual basis but for reduced hours. The key thing to remember here is that part time employees should not be treated any less favourably in comparison to their full time counterparts purely because of the difference in hours that they work, unless their hours are a justifiable factor in the decision process. For example, pay should always be awarded on a pro-rata basis for part time workers in comparison to an equivalent full time role. Employees have the right to challenge and demand written explanations if they think that they are being treated differently on this basis alone.

  • Temporary vs Permanent: This distinction depends upon the contract of employment which we will discuss later on. The temporary or fixed term worker will have a contract which agrees their employment for a fixed period of time as opposed to an ongoing permanent relationship. As with part time workers, temporary workers must not be treated any differently to their permanent counterparts purely on the basis that they are on fixed term contracts.

2. Statutory Rights
These are the rules that govern and provide the framework for how you will need to deal with your staff from the start of the recruitment process to the cessation of the contract of employment. They cover not only the definitions of employment types mentioned above but every other area of individuals’ rights in the work place. They are too broad and detailed to discuss in their entirety here but, in summary, include:

Pay

  • Minimum Pay – Rates for over 16s, varying for different age groups
  • Equal Pay – Contracts for women employees must include the same pay and benefits as that of a man in an equivalent role
  • Pay Slips – To be itemised and provided before or on the date of pay
  • Discrimination – Employees must not be discriminated against based upon “protected characteristics” such as age and sex. Provisions must be in place for disabled workers
  • Equality Act 2010 – Employers do have the right to choose between two candidates of equal ability on such a characteristic if it is under-represented amongst their staff

Working Hours

  • Maximum Working Week – 48 hours, regular breaks etc. Opt outs can be agreed but not demanded
  • Flexible Working – Parents of children up to 18 years old have a right to apply to changes to their hours and work location which an employer can only refuse if specific circumstances are met
  • Parental Leave
  • Maternity Leave – 26 weeks ordinary and 26 weeks additional entitlement
  • Paternity Leave – 2 weeks entitlement with additional 26 weeks when mothers return to work

Absence

  • Sickness – Statutory sick pay entitlement etc
  • Compassionate Leave – Employees have a right to time off (but not pay) if they have illness or death in the immediate family

Whistleblowing – Protection for some disclosures in specific circumstances which would otherwise breach the employee’s contract.

Workplace Health & Safety (see below)

Redundancy – When an employee’s role is no longer required.

  • Statutory Pay
  • Notice Period
  • Relocation Opportunities

TUPE – Conditions of employment must be transferred in the event of a take over.

Pensions – Most employers must offer employees a stakeholder pension provision.

Dismissal & Disciplinary

    • Unfair Dismissal – The employer must have a fair reason (e.g., employee conduct) to dismiss an employee with 1 years employment and must follow a fair dismissal procedure. Some reasons for dismissal will qualify to be considered as automatic unfair dismissals such as union action, time off for parenting etc

    • Wrongful Dismissal – Notice must be given by all parties (unless a fixed term contract is lapsing) as set out in common law

  • Constructive Dismissal – If an employer breaks the terms of a contract and consequently forces an employee’s dismissal

Retirement – The Default Retirement Age is ultimately due to be scrapped by Oct 2011 although there are certain measures already in place to reach this end (Retirement is therefore no longer a fair reason for dismissal).

One of the most essential things to remember with statutory rights is that they are regularly changing. As an employer or HR worker you must remain familiar with the latest developments.

3. The Contract
Perhaps the most important element of any employer-employee relationship is the contract of employment. All parties will have certain statutory rights as mentioned above but the finer details and practicalities of the relationship will be contained in the employment contract. The contract will determine the procedures to follow in the event of staff under-performance or disciplinary proceedings, any employee benefits and concessions above and beyond their statutory entitlements (e.g., maternity leave, compassionate leave) and ultimately the conditions and processes of releasing staff either through dismissal, redundancy or resignation.

4. Trade Unions
If you are an employer of more than 21 individuals you may be approached by a trade union seeking recognition from your organisation. The Trade Union needs to show that it has a 10% representation in your workforce and that those members wish your organisation to acknowledge it. You will have 10 days to respond to the request otherwise you will have effectively rejected the approach. In the event of rejection the Trade Union can apply to Central Arbitration Committee to force you to accept their approach for recognition. Once a Trade Union has been recognised, an employee is entitled to take part in industrial action organised by the union (for a period of up to eight weeks) if the industrial action was called for by an official Trade Union ballot. Any dismissals resulting from this action would automatically qualify for unfair dismissal.

5. Health And Safety
An employer is obliged by common law to provide a safe working environment and to ensure that their workers are fully competent in the roles they are filling. However employers are also bound by statutory requirements which reinforce these obligations and the fact that all employees must, at all times, be fully capable, be trained in the safety procedures that they must follow and be aware of the Health & Safety Act 1974.

To this end employers are also required to perform regular assessments of the risk in the workplace, not only to their own employees but any other individuals who may be affected. Employers of at least five members of staff must document these assessments and are in addition required to produce a documented health and safety policy which is communicated to all members of staff.

There are many more requirements that an employer must be aware of to fulfill these objectives and specific additional regulations which apply to particular industries and workplaces.

As you can see employment law is a very broad and nuanced topic and it takes a fair amount of effort and time to become familiar with it. Therefore, if you are in doubt, or you need guidance on a specific circumstance you should seek advice from a qualified employment law specialist, such as Employment Solicitors Basingstoke to make sure you take the easiest and most economical path to a resolution.

Run Pre Employment Check on Yourself to Mark Success

“Over 90% of companies run background checks on applicants”.

Unemployment is soaring. Many employers have already seized new hiring ventures and very few jobs are available. Despite a very modest improvement in recent months, the job market is still hovering around 9.5% unemployment, unthinkable four years ago. In most fields and industries, competition for the best jobs is almost overwhelming.

Is there anything a common job seeking person can do to stand out from the unemployed crowd? Actually, there is a way by which you can mark your primal success over your competitor candidate and how it’s going to be happen, when you run your own background employment check before applying a job.

The question arises in every job seeking mind that how running an employment check upon yourself might help in getting a prospective job career. So it is simply because, first it enables you to find out if any erroneous information is being reported about you. And second, it reassures potential employers that the qualifications you present in your job application are true and correct. A study conducted by a human resource and recruiting firm stated that as many as 44% of the resumes and job applications contain inaccuracies or outright deceptions.

Every single employer is now conducting a background check or employment check before hiring. The fact you have presented your own self-background- employment check suggests that a problem is not likely to crop up when the employer runs its own background check. In other means, it can double your chances for being hired as employer will not be able to uncover something which will cause him/her to have to disqualify you at end of hiring process thereby wasting company time and resources.

What’s more, as said, if by chance there is some mistake being made in compiling your background check, for example, a State is erroneously reporting you have a criminal record when if fact you don’t, running your own background check will alert you to this problem so you can take steps to correct it before an employer sees it.

Bottom Line: This may be a good preemptive strategy in today’s killer job market. But how do you go about it? Let’s have a look at it through these simple easy steps to opt for a employment check.

There are four essential pre employment background checks that you can run on yourself are as follows;

  1. Education: Pre employment background checks
  2. Credit Record or History Checks
  3. Employment Criminal background checks
  4. Social Security Number Trace

Education Background Check Made Easy:

Education background checks is one of the most essentials checks employers perform as employment checks. Strict credentialing practices are used to verify your university/college accreditations, your study time (attendance and date of admission/passing out) and sometimes your grades are also verified.

    • When verifying your own university/college degree, the first place you want to look is The National Student Clearinghouse. They run the automated database that provides degree verification very quickly.

    • Typically, colleges and universities provide education verification over the telephone. You can contact your institution administration/registrar office to confirm the accreditation of university/college with accreditation authorities. Then you can double check your admission/passing out dates as well as your grades.

  • If your institution cannot find your degree or the name on degree is changed to your current name, (an unusual situation, but it might happen), you have to take care of the problem. You will probably need to fax the school a copy of your diploma or any other documentation you have, to remove the chances of being debugged.

Credit Records or History Pre Employment Background Checks:

Be aware of what is on your credit report, especially if you think a prospective employer might check it. That way, if there are inaccuracies on the report, you can take steps to correct them.

Employers are very keen to know about your credit histories as it can easily predict your future in their organization. So it’s feasible to run a credit history employment check on yourself by adopting these four basic precautions.

  • Contact your bank and ask them for your credit report.
  • If you find any mistake or discrepancy, point out and correct it right away.
  • Make your bank to certify you for clean credit history.
  • After these 3 steps to resurrection, you can notify your prospective employer of the inaccuracies and of the steps you have taken to correct them.

Criminal Background Checks as Employment Checks:

Employers want to know about your background, and you can be assured that they will check to see if you have a criminal history.

    • The best source of a complete criminal background employment check is the Department of Justice for your state. If you have a criminal record in multiple states, you will need to contact each state’s Department of Justice. You can also get a copy of your criminal record from the court where your case(s) went to court.

    • These local records are found in courthouses and police departments, you can also look in specialized searches which include the Terrorist Watch List, the Federal Wanted Persons List, and Sex Offender Registries. Most of these records are contained in large databases that are updated on a regular basis.

  • Criminal background checks be best searched by hand at the county/states level, with full names, date of birth, should be used as much as possible to confirm a positive identification.

Social Security Number Trace

An applicant’s social security number is used throughout the pre-employment screening process, checking your validity of the number accomplish several things.

    • It confirms that the number belongs to you and it provides a list of current and previous addresses, as well as other names used.

    • Make sure each numeral is clearly written so no one has to try and decipher your handwriting.

    • If you had reason to change your SSN, provide both numbers and add a brief note explaining why you had to change your number. Also, indicate when you started using the newer SSN.

  • This verification also provides other last names associated with the SSN and a list of previous addresses.

Drawn Conclusion and Recommendations:

The strategy is simple. Get your own employment check report done, and then offer it to an employer as a way of reassuring him that you’re on the up-and-up. This is not at all an uncommon practice these days. You can attach a printed copy of your Self-Check Employment Screening Report to your resume.

Not everyone knows what happens during a pre-employment screening. In fact, most people know very little about it. So, Consider hiring a specialize pre employment background checks company or try to check your background online with authentic sources and public record portals, they are extremely helpful and can easily detect you out of everywhere; they are reliable, cost effective and time saving.