Category Archives: health and safety

Protected Conversations Must Remain Secret

SUMMARY: Learn more about protected conversations with your employeesPrivate conversations

In 2013 there was a welcome change, which now enables employers to have what are called protected conversations with their employees about ending the employment relationship.  Previously, employers had been nervous about having such conversations, due to the risk that an employee would later rely on what had been said as evidence in an unfair dismissal claim.

Since then employers in some circumstances have been able to speak more freely with those employees who are not considered to have a future with the organisation, usually because their performance or conduct is substandard. Once the discussions have started, there are likely to be two outcomes:

  1. The employee agrees to leave and their departure is managed with a settlement agreement to remove the risk of any tribunal claim. To learn more about settlement agreements, please click on the following link –
  2. The employee declines the offer of an agreed departure.  If that is the case, the employer can then go back to its internal procedures to manage the situation. If the employee is subsequently dismissed, the following protection arises so that there can be no reference to either:
  • the content of any settlement offer or the pre-termination discussions; and/or
  • the fact an offer has been made or pre-termination discussions have arisen. This level of protection has recently been confirmed by the Employment Appeal Tribunal, which explained that an employee should not be able to refer to the fact discussions have taken place pre-dismissal in an unfair dismissal claim.

Clarification was also provided that the protection extends to any internal discussions between different managers and human resources.

Protected conversations are potentially a safe way of managing straightforward people management issues. Employers however wanting to have such discussions should be aware of the following:

  • The protection is lost if either party engages in improper behaviour including for example, bullying, harassment, discrimination, victimisation, physical assault, or undue pressure.

Telling an employee that the capability or conduct procedure will be invoked if terms cannot be agreed would not be improper behaviour.  Stating that the individual would be dismissed if they do not agree to leave would be improper behaviour.

  • The employee should be given a reasonable period of time to consider any offer and take advice; ten days is usually considered to be reasonable in most cases.  Although there is no statutory right to be accompanied at any meeting where a protected conversation takes place, as a matter of good practice an employee should be entitled to be accompanied by a work colleague or a trade union representative.
  • The protection will only apply in respect of “ordinary” unfair dismissal claims. Where an employee brings proceedings for automatically unfair dismissal (for example, whistleblowing or health and safety), or any other claim such as discrimination or breach of contract, the protection afforded to pre-termination negotiations will not apply.  This does therefore create inherent uncertainty in the effect of initiating a pre-termination negotiation until an employee commences proceedings, or decides not to do so as settlement terms have been agreed.

If you consider that you may want to have a protected conversation with an employee, it is preferable to take legal advice before doing so.  This will ensure that you are confident that a protected conversation is the right way forward and if not, what other ways there are to managing the situation.

Contact Details

To explore how protected conversations and settlement agreements can provide solutions to workplace problems – please contact:

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

FG Solicitors’ quick guide to key payments by employers

As part of our popular “quick guides” series, our team of employment law experts has produced an easy to use guide to key payments by employers. For more comprehensive advice on payments which should be made as well as when employees qualify for them, please contact a member of our team using the details below.


April 16

Maternity/adoption pay prescribed rate (max)


Paternity pay (max)


Shared parental pay (max)


Sick pay


Lower earnings limit  (a)




April 16

October 16

Apprentices  (b)



Age 16-17



Age 18-20



Age 21-24



National Living Wage (Age 25+)





April 16

Week’s pay


Statutory redundancy payment: up to 30 weeks’ pay


Unfair dismissal basic award: up to 30 weeks’ pay


Unfair dismissal compensatory award  (c)


Breach of right to be accompanied: up to 2 weeks’ pay


Breach of flexible working regulations: up to 8 weeks’ pay


Failure to give written particulars of employment: 2 or 4 weeks’ pay  (d)

£958 or £1,916

Breach of contract claim in employment tribunal


Failure to inform or consult: collective redundancy  (e)

90 days’ pay

Failure to inform or consult: TUPE transfer  (e)

13 weeks’ pay



(a). To qualify for these payments, in addition to other criteria such as length of service, the employee must earn the same or more than the weekly lower earnings limit (“LEL”), which is set by the government. The LEL from April 2016 is £112.00 before tax.

(b). Only applicable to those under 19 or in the first year of their apprenticeship. For all other apprentices, refer to age bands.

(c). Maximum compensatory award is lower of statutory limit or 52 weeks’ actual gross pay at the time of dismissal. Limit does not apply where reason for dismissal or redundancy selection is carrying out health and safety activities or making a protected disclosure.

(d). Please see our guide to essential contracts.

(e). Calculated by reference to employee’s actual gross pay – the limit on a week’s pay does not apply.

Contact Details

For more details about amending handbooks or contracts of employment or consulting with your workforce please contact:

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Contract Essentials

Contract sorter - FG Solicitors

SUMMARY: With unemployment rates at an all-time low we are frequently asked by clients whether they can use the same contracts for each type of employee or worker they engage. The short answer to that question is “no”. As there are a number of contracts and agreements widely available to organisations, we have produced a quick guide to the key contracts.

Type of contract/agreement

Who does it apply to?

Who should it not be used for?

When should your organisation use this contract/agreement and what are the key considerations?

Directors’ Service Agreement

Any Executive Director

Employees generally


Temporary Workers

Zero Hours Casuals


Non-executive Directors

  • It is a legal requirement to provide specific terms and conditions within 2 months of an employee commencing employment. Although a standard employment contract can be used, businesses often prefer using Directors’ service agreements due to the additional obligations owed by directors.
  • For owner managed businesses these agreements are favoured to provide protection of the directors’ rights on the sale/transfer/takeover of a business.

Employment Contract

Employees (including directors where a Directors’ Service Agreement is not in place)


Temporary Workers

Zero Hours Casuals


  • It is a legal requirement to provide specific terms and conditions within 2 months of an employee commencing employment.
  • Contracts can be standardised for differing categories of employee within the business such as managers, shift workers or home based employees.
  • The contract can include additional protections for the employer such as post-termination restrictions, confidentiality and intellectual property rights – particularly relevant for a number of industries including IT, Professional/Financial Services and Pharmaceuticals. These need to be tailored to the organisation’s needs.
  • Employment contracts for part-time employees need to include specific provisions to ensure entitlements are accrued on a pro-rata basis.
  • Employment contracts for fixed-term employees need to include specific provisions relating to the termination of the employment.

Apprenticeship Agreement

Apprentices (on a work-based training programme).

Employees (including directors)

Temporary Workers

Zero Hours Casuals


  • Apprentices are employees and the legal requirement to provide specific terms and conditions within 2 months of the employment commencing applies.
  • Failure to ensure the appropriate apprenticeship agreement is in place, can result in apprentices having rights which can make it difficult and costly to terminate their employment before the end of the apprenticeship.
  • The agreement will include specific provisions relating to the termination of the employment.
  • The agreement can include additional protections for the organisation such as post-termination restrictions, confidentiality and intellectual property rights – particularly relevant for some industries typically associated with apprenticeships such as the IT industry. These need to be tailored to the organisation’s needs.

Zero-hours Casual Worker Agreement

Zero Hours Casuals

Employees (including directors)




  • The agreement will make it clear that it is intended the individual is a worker, rather than an employee, so does not have employment rights.
  • The agreement will set out how work will be offered and accepted.

Consultancy Agreement

Consultants (individuals who are self-employed or whose services are provided through a service company)

Employees (including directors)

Temporary Workers

Zero Hours Casuals



  • The agreement should specify that the individual is not a worker or employee, but is self-employed or engaged by a service company*.
  • The agreement will detail the basis on which work is offered, payment (including the submission of invoices) and where tax liability sits.
  • It is prudent to set out whether the consultant will have the benefit of various employment rights, or the more limited rights available to workers.
  • The agreement should clarify whether the individual is owed health and safety duties or whether the individual (as an independent contractor) is responsible for their own safety.
  • The agreement can also include additional protections for the organisation such as appropriate restrictions, confidentiality and ownership of intellectual property rights – particularly relevant for a number of industries including IT, Professional/Financial Services and Pharmaceuticals. These need to be tailored to the organisation’s needs.
  • The agreement should also contain appropriate termination provisions and/or substitution rights.

*Organisations are advised to take advice on the practical workplace arrangements and obligations when engaging consultants as these considerations will factor when determining if the “consultant” is, in fact, an employee.

Secondment Agreement



Zero Hours Casuals

  • Specific agreements should be put into place where the employer intends to temporarily transfer an employee from one organisation to another.
  • The agreement will set out details of the relationship between the two organisations and the employee.
  • The agreement will deal with the employee’s employment status, payment arrangements, day to day management arrangements and the corresponding liabilities.



Contact Details

For more details about any of the above contracts, or if you just want someone to check that your current contracts are up to date, please contact a member of our Employment Law team:

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

On the 7th Day of Christmas…

7th Day of ChristmasOn the 7th day of Christmas my employee said to me… “I’ve had too much to drink at the Christmas party.”

Many employers celebrate the festive season by providing alcohol for employees at the Christmas party. It is easy to forget that in this season of good cheer employment law still applies and if alcohol is to be served at a work event, employers should consider the following to manage any potential legal risks:

  • Having a policy in place setting out the standards of conduct expected at work social events and the consequences of breaching the policy. The policy should be brought to the attention of all employees prior to any Christmas party.
  • Ensuring that the event is as inclusive as possible to avoid complaints of discrimination. Non-alcoholic drinks should be available for employees who do not drink alcohol for religious or other reasons.
  • Keeping an eye out for younger members of staff as employers cannot serve alcohol to under 18s. This is becoming a more relevant consideration as the number of apprentices increase in the workplace.
  • Having the party at a licensed venue. Whilst this will not entirely absolve the employer from its duty of care to its staff, the venue owner will be responsible for serving the alcohol.
  • Ensuring that the health and safety obligations towards staff are satisfied. Employers need to consider how those who are worse for wear from excessive drinking will be managed and who will deal with this, particularly if there is a free bar. It may be preferable to limit the amount of alcohol that can be consumed and make non-alcoholic refreshments readily available.
  • Making clear what the arrangements are in relation to lunchtime events if alcohol is to be served where employees may be returning to work in the afternoon. Does this provide a health and safety risk for example in a factory setting, or a reputational risk in a customer facing environment?
  • Providing food and entertainment, which can be a distraction to those who may otherwise spend the evening propping up the bar.
  • Reviewing the arrangements for staff to get home safely. There should importantly be a zero tolerance message about drink driving.
  • Taking prompt action if there are conduct issues to be dealt with after the event. This applies equally if complaints are made by employees about harassment… more about this on the 8th Day of Christmas.

This guidance equally applies to other corporate social events at other times of the year.

Contact Details

For more details about the issues in this article please contact:

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

On the 4th Day of Christmas…

4th Day of ChristmasOn the 4th day of Christmas my employee said to me… “I can’t get to work because of the snow.”

Although unseasonably mild now, chances are some parts of the country will experience travel disruption due to snow over the coming months and operational efficiency may be significantly affected if staff cannot get to work.

Proactive employers should develop a strategy for responding to this possibility which should include the following key considerations:

  • Health and safety

Health and safety may be called into question where employees indicate that it is too dangerous to travel but are required to continue with their journey and, as such, should not be ignored. Employers need to be aware that employees are protected from detrimental treatment and dismissal for raising concerns on health and safety grounds; raising such concerns could also trigger protection under the whistleblowing legislation.

  • Pay

Usually if an employee is unable to get to work there is no automatic right to be paid. However, before deciding this, existing contractual, collective or custom and practice arrangements already in place need to be considered to establish what rights employees have in relation to pay in such circumstances. Equally, if employees have to be sent home as it is not practicable or safe for the business to remain open, those employees with contractually guaranteed hours or salary will still have the right to be paid unless the contract provides otherwise.

Employers should always check for appropriate clauses in contracts before deducting pay for non-attendance.

  • Flexibility

Taking a flexible approach to working hours and the place of work may be a possible solution for some employers, examples of possible approaches include:

  • homeworking;
  • allowing employees to work at another site, which is more easily accessible;
  • allowing staff to make up the missed hours;
  • treating the time as annual leave; or
  • offering time-limited paid leave.

This approach will however need careful planning and communication to avoid future pitfalls.

Whatever your business strategy, planning ahead will be key to minimising business disruption and at this stage it may be useful to involve employees in the process as they too could provide valid solutions to the problem.

Contact Details

For more details about the issues in this article please contact:

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Can Employers Test Employees for Drug Use?

FG Solicitors - Drug Free Zone (cropped)SUMMARY: As drugs testing has become a more common consideration in the workplace, employers need to ensure their testing practices are legally compliant.

Why should employers be concerned about drugs and alcohol at work?

Employers want to ensure that employees are carrying out their roles effectively. This may not be the case where employees are under the influence of drugs or alcohol, which can result in (amongst other concerns) impaired job performance, health and safety concerns, increased short-term sickness absence and a deterioration in their relationships with colleagues, customers or managers.

In addition, possession of some drugs is illegal and employers could be breaking the law if they knowingly allow drug-related activities in the workplace and fail to act.

When can employers test employees for drug use?

It is possible for employers to carry out drug screening, but the screening should be justified, necessary and proportionate. An employer is likely to be able to justify screening where working under the influence of drugs could give rise to:

  • health and safety considerations (eg. where staff drive, or operate machinery, or where accuracy or decision making impacts on the health and safety of others); or
  • serious damage to the employer’s business.

If an employer cannot show the above, it is unlikely that screening would be appropriate and if it is carried out they could be in breach of legislation such as the Data Protection Act 1998.

If testing is necessary, employers should take into account the following key points when testing for drugs:

  • Testing should be carried out with the employee’s consent (although an employer may make withholding consent a disciplinary matter).
  • Employees should be told what drugs are being tested for.
  • Testing should be limited to those substances which could adversely affect the employee’s  performance.
  • Employees should be told what could be the possible consequence of their refusal to submit to testing or for failing the test.
  • Testing should not be carried out on samples obtained without the employee’s knowledge.
  • Employers should not single out particular employees for testing unless this is justified by the nature of their jobs.
  • Employers should use a reputable and recognised means of testing.
  • Employees should be given the opportunity to see and challenge the test results, including providing them with duplicate samples so they can carry out their own independent checks.

Case example

One example of where an employer could justify carrying out drug testing is where the employer is a bus company and its drivers are tested; it is imperative for health and safety reasons that they are not under the influence of drugs when they are conveying a bus load of people.

However, an employer should be careful with the results of any such testing and should bear in mind that tests are not infallible. Even if test results are positive, this does not remove the requirement under the ACAS Code of Practice to carry out a reasonable investigation.

First Bus is recently reported to have discovered the importance of carrying out an investigation after it dismissed a bus driver who tested positive for cocaine. First Bus apparently would not listen to his alternative explanation for the positive saliva test; at the tribunal his solicitor argued he had handled hundreds of pounds of cash on the day of the test, which could have been contaminated by cocaine. He took a hair test himself, which showed no traces of cocaine in his system. Ultimately, the employment tribunal is reported to have awarded him the maximum amount of compensation for unfair dismissal.

This case highlights the importance of carrying out a meaningful investigation before any decision about disciplinary action is taken, which would include permitting the employee to challenge the results and put forward their own version of events.

Substance Misuse Policy

The Information Commissioner’s Office Employment Practices Code suggests that a drug or alcohol policy (which we refer to as “substance misuse”) should be contained within a staff handbook.

A substance misuse policy usually includes clear rules relating to the employer’s stance on coming to work under the influence of alcohol or drugs (whether prescribed, over the counter or controlled substances) and about drinking alcohol or drug taking while at work.

It could also set out details of any drug screening (and alcohol testing), which should include the circumstances in which drug screening would be undertaken. For some employers, it would not be appropriate to include drug screening, for the reasons set out above.

Finally, one advantage of a substance misuse policy is that the consequences of a breach of it (such as disciplinary action) can be made clear to employees. This is key to ensuring any dismissal which may occur is fair.


In answer to the title question: yes, employers can carry out drug testing, but only in limited circumstances, usually related to health and safety, and it is good practice to have a drug/alcohol/substance misuse policy.

Contact Details

For more details about how to deal with drug issues which may arise in the workplace or if you would like a substance misuse policy please contact:

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Employee Vs Employer Over Alleged Inadequate Investigation

Inadequate InvestigationSUMMARY:  In the recent case of Coventry University v Mian, the Court of Appeal considered whether an employer had breached its duty of care to an employee by bringing disciplinary proceedings against them after an inadequate investigation.

Legal background

A disciplinary investigation needs to be undertaken in a manner which is “reasonable in all the circumstances”, judged objectively by reference to the “band of reasonable responses”. What this means in practice is that an employer will need to investigate sufficiently to ensure that the substance of the allegations is clear, in order that these can be put to the employee in sufficient detail to enable a meaningful response. The person who appointed the investigating officer should decide at the end of the investigation what the next steps should be, in view of its findings.

Employers have a duty to take reasonable care for the health and safety of employees in the workplace and there is an implied term of mutual trust and confidence in all employment contracts. Employees could bring a personal injury claim if this duty is breached.  They would need to show that the employer has breached the duty of care, that this breach has caused the employee injury and an injury of that type, as a result of the breach, was reasonably foreseeable.

Facts of this case

Dr M was employed by Coventry University. One of her colleagues, Dr J, left to take up a post at Greenwich University.

Greenwich University contacted Coventry University expressing concern about a “large disconnect” between statements made in Dr J’s reference and his performance. The reference was purported to be written by Dr M and it was agreed that this reference was inaccurate.

The Associate Dean of the Faculty investigated how the reference had been provided.  As part of the investigation, the Associate Dean discovered 3 other draft references for Dr J saved on Dr M’s hard drive and obtained the view of Dr M’s line manager (Dr C) who doubted that the signature on the reference was Dr M’s. The Associate Dean then invited Dr M to a meeting.  She said that she had agreed to be a referee for Dr J and that he had provided references he would like her to produce, which she had saved onto her H drive. These contained false, misleading and inaccurate statements which she had refused to use. She had written short references for him instead but had deleted these from her computer.  She had retained the longer references prepared by Dr J, to keep him quiet. She felt intimidated by Dr J, but had not raised this with Dr C.

The Associate Dean sought further information from Dr C about relations between Dr M and Dr J.  Dr C advised that Dr M had not complained to her about Dr J’s behaviour. As far as she knew, relations between Dr M and Dr J were cordial.

The Associate Dean considered that Dr M had a case to answer for gross misconduct. He recommended disciplinary proceedings to consider the allegation that Dr M had been complicit with Dr J in the preparation of false and misleading employment references. After consultation with the University’s HR department, it was decided that disciplinary proceedings should be instigated.

After being invited to a disciplinary hearing, Dr M was signed off sick and the hearing was delayed for several months. An independent assessor eventually dismissed the allegations.

Dr M did not return to Coventry University and she brought proceedings arguing that in commencing disciplinary proceedings without undertaking further enquiries, the University had been in breach of contract and/or negligent so as to cause her psychiatric injury.

A judge upheld Dr M’s claim and Coventry University appealed this decision.

The Court of Appeal’s decision

The Court of Appeal allowed the appeal and dismissed Dr M’s claim.

The Court of Appeal held that the judge had ended up substituting his own judgment for that of Coventry University.

The test the judge should have applied to the facts to decide whether there had been a breach of duty was whether the decision to instigate disciplinary proceedings had been “unreasonable” in the sense that it had been outside the range of reasonable decisions open to an employer in the circumstances. Reasonable people could reach different judgments on the same question and it was possible to be “wrong”, in this case about either the basis on which the investigation should have been undertaken or about Dr M’s culpability, without being negligent.

A reasonable employer could have concluded that there was a case for Dr M to answer on a charge of gross misconduct, on the basis of the evidence available at the time proceedings were instigated. This evidence included, in particular:

  • The finding of the three false references for Dr J saved on Dr M’s computer.
  • The fact that if Dr M had no involvement in the production of the reference for Greenwich University then Dr J must have intercepted Greenwich University’s request from her pigeon hole in a manned office without her knowledge. Two members of staff at the University thought this was implausible.
  • Dr M had not mentioned her concerns about Dr J to anyone. The fact that she had asked him to be an examiner for one of her PhD students, her agreement to be his referee and giving him access to her computer may have indicated Dr M and Dr J were on better terms than she suggested. Alternatively, her description of being intimidated by him could reasonably be considered to be consistent with her having been “persuaded” to reluctantly do something for Dr J, such as sending a false reference.

While Dr M strongly denied any complicity with Dr J, her account ultimately depended on her credibility.  Coventry University might have decided to accept her explanation on the basis of her otherwise excellent reputation, and to take the matter no further, but it was not unreasonable for it not to do so, and to instigate disciplinary proceedings, given some of the peculiar features of the case. Support for this decision also came from the fact that the independent assessor had not dismissed the case against Dr M out of hand.

A disciplinary hearing would permit the evidence on both sides to be considered, and a determination made as to the rights and wrongs of the case by an assessor.

What does this mean for employers?

Although the employee was ultimately unsuccessful in this case, it is clear that employees can bring a claim for negligence against employers who bring disciplinary proceedings against them without undertaking an adequate investigation first. This case illustrates the need for employers to undertake thorough investigations into disciplinary allegations.

It is important for an employer to clearly define the allegations at the outset. The investigation should involve searching for relevant contemporaneous evidence and speaking to each relevant witness before putting the allegations to the individual who is the subject of the allegation. The more serious the allegation, the more thorough the investigation needs to be. The employee needs to have a clear understanding of what the allegations are and the investigator should be careful to ensure that any issues that arise as a result of an interview are followed up before a decision on the pursuit of disciplinary proceedings is made.

Contact Details

For more information about this case or conducting investigations and commencing disciplinary proceedings, please contact:

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.

Whistleblowing on Dangerous Snowy Conditions

SUMMARY: The EAT has upheld a decision that 3 separate emails about snowy conditions could amount to a “qualifying disclosure” about health and safety for the purpose of whistleblowing protection.

Legal Background

An employee who blows the whistle has protection against being dismissed or subjected to a detriment because they have taken this action.  Whistleblowing means making a qualifying disclosure and there are various reasons for which a disclosure can amount to a qualifying disclosure.  One of these reasons is if the disclosure is about health and safety.

To amount to a qualifying health and safety disclosure and so provide the employee making the disclosure with protection, the disclosure should show that the health or safety of an individual has been, is being or is likely to be endangered.

If an employee simply expresses an opinion or makes an allegation, this cannot amount to a qualifying disclosure.

Facts of this case

In this case, an employee sent 3 separate emails to 2 separate recipients relating to his concerns about his team driving to appointments in the snow in the winter of 2010.  He first sent 2 emails to the company’s health and safety manager and subsequently emailed a member of the company’s Human Resources department asking about payment if his team were unable to make appointments in the snow.

The Employment Appeal Tribunal’s (EAT’s) decision

The EAT upheld the employment tribunal’s decision that the email correspondence taken as a whole was a qualifying disclosure.  It was clear in the final email to Human Resources that earlier correspondence had been sent about the dangers of driving in the snow.

Although taken on their own, the emails did not amount to qualifying disclosures, taken together they did amount to a qualifying health and safety disclosure.

What does this mean for employers?

Employers should be aware of the following:

  • Email correspondence can easily be referred to in a tribunal so emails should not be dismissed or sent lightly;
  • Emails which refer to dangerous working conditions, including dangerous driving conditions for sales staff, should be taken seriously;
  • Emails which seem short with insufficient detail on their own could be protected by whistleblowing legislation when taken with other emails;
  • If an employee refers to previous correspondence to another manager, the person receiving the later email should check exactly what the previous correspondence says and consider the emails together; and
  • A person should not be subjected to any detriment (i.e. be dismissed, not offered an opportunity for promotion or a pay rise etc.) because they have raised concerns about health and safety.

We would therefore always advise taking legal advice if an employer is considering dismissing an employee if there is a history of the employee raising health and safety concerns.

Hazel Robbins, Solicitor

Case: Norbrook Laboratories (GB) Ltd v Shaw

Contact Details

For more details about this case or whistleblowing please contact:

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.