1. EmployeeTerminations in the UK
Bettina Bender, Partner, CM Murray LLP
Law Society / UKTI: Doing Business in the UK
The British Consulate Boston 27 July 2009
The Harvard Club New York 28 July 2009
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

2. CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

3. Key Issues to Consider English employees benefit from:-
Contractual Rights (Notice)
Statutory Protections
The ‘at will’ status does not translate well across the Atlantic!
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

4. The Key Statutory Protections
Unfair Dismissal
Discrimination (sex, marital status, pregnancy, race, disability, age, sexual orientation, gender re-assignment, religion or belief)
NB: compensation loss-based
Whistleblowing
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

5. Unfair Dismissal – the one that causes all the problems…
Applies to employees with > 1 year’s service (exceptions, e.g. trade union membership, pregnancy)
To dismiss an employer needs
A fair reason; and
A fair procedure
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

6. Fair Reason Conduct (e.g. theft, persistent lateness)
Capability (e.g. underperformance)
Redundancy;
Retirement;
A Statutory Restriction; and
Some other Substantial Reason (e.g. reorganisation)
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

7. Fair Procedure ACAS (Advisory, Conciliation and Arbitration Service)
Code of Conduct
The basic steps:-
Notify the employee of complaint
Investigation into the issues
Meeting; allow witnesses to be called
Written decision and right of appeal
Appeal meeting
Final written decision
NB the employee needs to be told of their right to be accompanied at the meetings
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

8. The Penalties
If a successful claim is brought and the Employment Tribunal makes a finding of unfair dismissal it can order:-
Reinstatement
Re-engagement
Compensation – this is the usual remedy
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

9. Tribunal Uplift
A failure to apply such a process (including providing a right of appeal) could result in a 25% increase in compensation if the employee succeeds at Tribunal
Different Rules apply on retirement or redundancy but again very specific procedural steps must be followed
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

10. Compensation The Basic and Compensatory Award
The Basic Award is based on a maximum weekly wage of £350, age and length of service and is currently subject to a maximum of £10,500.
The Compensatory Award is based on the employee’s loss of earnings resulting from the dismissal, subject in most cases to a maximum limit of currently £66,200 (The employee is under a duty to mitigate their losses, i.e. find another job)
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

11. Do Watch Out
US employees in Britain usually obtain UK statutory rights despite US/state choice of law clauses
Importance of procedures/consultation
Employee/Worker/Self-Employed Consultant
Employees with less than 1 year’s service claiming discrimination/whistleblowing
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

12. Collective Redundancies
Large-scale workforce reductions – collective consultation rules apply
20 – 99 redundancies – 30 day consultation period
> 99 redundancies – 90 day consultation period
Protective award – maximum 90 days pay
Notify the Secretary of State of planned redundancies
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

13. Minimising Risk Plan ahead
Keep a papertrail of warnings, appraisals etc
Options on termination:-
1. Follow process – potentially lengthy, but reduces risk
Terminate – high risk but often commercial approach taken
Undertake/commence process and then negotiate terms of severance agreement
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

14. “ There is a way through!”
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

15. Bettina Bender, Partner
Speaker Details
If you have any questions, please do not hesitate to contact:
Bettina Bender, Partner
CM Murray LLP
37th Floor
One Canada Square
Canary Wharf
London E14 5AA
United Kingdom
Phone: (0)
Website:
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law