Your Guide to Legal Terms
Understanding legal terminology can be challenging. To help you navigate complex legal language, we’ve created this glossary of commonly used terms and their definitions. Whether you’re reviewing a contract or preparing for a legal discussion, this resource is designed to provide clear and straightforward explanations.
What does “without prejudice” mean?
This is a legal term that means that statements or actions made under this phrase cannot be used against a person in court or as evidence in legal proceedings. The discussions are ‘off the record’.
When is it used?
Often used during “settlement” negotiations where there is a an ongoing dispute between the parties to allow the parties involved to discuss terms openly and honestly without the risk that these discussions will later be used against them if the case goes to trial.
What is a ‘Protected Conversation’?
This is similar to the ‘Without Prejudice’ label but allows employers and employees to have a conversation about ending the employment relationship without the conversation itself breaching the term of trust in the contract where there is no pre-existing dispute (informal / grievance, formal complaint, ACAS Early conciliation, disciplinary action, litigation).
What makes a conversation “protected” under Section 111A:
1. The conversation must take place in the context of a potential dismissal / termination of employment, and the employee must not have already been informed that their dismissal is imminent.
2. There are certain exceptions to the protection, such as if the conversation was part of an attempt to dismiss the employee for reasons related to discrimination, whistleblowing, or other unlawful actions.
Warning: If the discussion involves discrimination or other illegal acts, it won't be protected. It also won’t be protected if the employee can allege the initiation of the conversation itself was discriminatory.
In a nutshell: The intention behind Section 111A is to encourage open and honest communication between employers and employees and to allow them to reach settlements without the risk of those discussions being used against either party if litigation follows.
What is a “PIP”?
PIP = Performance Improvement Plan.
It is a formal process used by employers to help employees improve performance when they are not meeting expectations / targets. A PIP:
1. Identifies the Issues such as work quality, deadlines, productivity, communication.
2. Sets Clear Goals: Outlines realistic, specific, measurable, and achievable goals focused on improving performance.
3. Supports and provides resources: such as training and mentoring, to improve skills and overcome the performance gaps.
4. Regular Check-Ins: Periodic check-ins to monitor progress during the PIP period to allow feedback and any adjustments to the plan.
5. Outcome: Makes it clear to the employee what the consequences are if goals are not met within the given timeframe.
In a nutshell: PIP’s are formal processes which provide employees an opportunity to improve performance before formal disciplinary action is taken. However, if the performance does not improve within the set period, it could result in termination of the employment relationship.
What is “Gross misconduct”?
Behaviour or actions by an employee that are so severe they justify immediate dismissal also known as ‘summary dismissal’ without notice or payment in lieu of notice.
Examples of gross misconduct can vary depending on the nature of the job and workplace, but common examples include:
1. Theft or Fraud: Stealing company property, money, or engaging in fraudulent activities.
2. Violence or Threatening Behaviour: Physical violence, threats, or intimidation.
3. Serious Insulting Behaviour or Harassment: Harassment or discrimination based on race, gender, sexual orientation, or any other protected characteristic, or using offensive language or behaviour.
4. Substance Abuse: Being under the influence of alcohol or drugs at work.
5. Gross Insubordination: Refusing to follow direct instructions.
6. Health and Safety Violations: Reckless behaviour that endangers the safety of oneself or others, particularly in workplaces with high safety risks.
7. Serious Breaches of Confidentiality: Disclosing sensitive company information, trade secrets, or personal data.
Misconduct or Gross Misconduct that is the question?
Given how severe the consequence of dismissal is for gross misconduct, employment tribunals often make findings of unfair dismissal and/or wrongful dismissal (requiring employers to pay unpaid notice pay) if the tribunal considers that an offence has been categorised incorrectly as gross misconduct.
When considering characterisation as gross misconduct, employers should consider the following:
1. Was the ‘conduct’ so serious that it goes to the root of the contract? Does it amount to a fundamental breach of the express or implied terms of the contract, entitling an employer to dismiss with immediate effect.
2. The conduct must be a deliberate and wilful breach of the contract or amount to gross negligence.
3. A pattern of conduct may potentially be sufficiently serious to undermine the relationship of trust and confidence, and therefore amount to gross misconduct, even though there is no single act which itself could be deemed gross misconduct.
In reality, different employers will take different approaches to whether or not something constitutes gross misconduct. For example, swearing may be considered a more serious offence in the hospitality sector than on a construction site.
Ultimately, what acts or omissions will amount to gross misconduct is a mixed question of fact and law. The precise circumstances that will amount to gross misconduct will vary depending on the nature of a particular employer’s organisation and what it does.
Practical tips for Employers
1. Employers should therefore ensure that a reasonable investigation into the seriousness of the offence is carried out.
2. Follow a fair disciplinary procedure (as per staff handbook or ACAS Code of Practice).
3. Disciplinary and appeal managers should take into account the particular employment and employee when deciding whether an act is gross misconduct
4. Provide in writing the reasons why the offence amounts to gross misconduct and why dismissal is the appropriate sanction (having regard to mitigating circumstances and alternatives to dismissal).
What is a “Disability”? (When it comes to employment law)
Under the Equality Act 2010 in the UK, a disability is defined as a physical or mental impairment that has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities.
Let’s break it down. What do we consider when looking at the definition? At the time of the alleged discriminatory treatment, we look at whether there is:
1. Physical or Mental Impairment:
Examples include mobility impairments, sensory impairments, chronic illnesses, mental health conditions (like depression), neurodiversity’s, and some learning disabilities. Conditions like Cancer, HIV and Multiple Sclerosis are automatically considered disabilities.
2. Substantial Adverse Effect:
"Substantial" means that the impairment is more than minor or trivial. The effect of the impairment must be significant enough to interfere with normal daily activities.
3. Long-Term Effect:
The effect of the impairment must last (or be expected to last) for at least 12 months or be expected to last for the rest of the person's life. If the impairment is temporary but lasts less than 12 months, it does not qualify as a disability under the Equality Act.
4. Normal Day-to-Day Activities:
These are activities that are part of everyday life. They include things like shopping, traveling, working, cooking, and using public transport.
Warning:
• Progressive conditions (those that worsen over time), such as multiple sclerosis or Parkinson's disease, may also be considered disabilities even if the effects are not immediately apparent.
• Temporary conditions (e.g., a broken leg) would generally not be considered disabilities unless the effects last for 12 months or more.
The Equality Act provides protections against discrimination for disabled individuals also imposes a duty on employers to make reasonable adjustments to be made for disabled individuals to ensure they are not at a disadvantage compared to non-disabled individuals.
Guess what? People who are perceived to have a disability (if they do not have one) may also be protected under the Act, especially if they face discrimination based on this perception.
What is a “Reasonable Adjustments”? (when it comes to the Equality Act 2010)
These are changes or modifications made to ensure that individuals with disabilities or specific needs can participate equally and fairly and are not disadvantage.
Depending on the working environment and the role itself, reasonable adjustments might include:
1. Workplace: Changing duties, working hours, providing equipment or assistive technology, or accessibility improvements (e.g., ramps, accessible toilets).
2. Education: Changes to how materials are presented (e.g., braille textbooks, audio recordings), extra time for exams, or providing a teaching assistant.
3. Services: Offering accessible communication methods, providing sign language interpreters, or ensuring accessible transportation.
What does ‘reasonable’ mean? They should not impose a disproportionate burden on the person business to make changes, but rather provide equal access and opportunities for those who need them.
When does the duty to make reasonable adjustments kick in?
The duty to make reasonable adjustments arises in three situations:
(i) where a provision, criterion or practice applied by or on behalf of the employer,
(ii) where a physical feature of premises occupied by an employer, or
(iii) where the lack of an auxiliary aid
places a disabled person at a substantial disadvantage compared with people who are not disabled. An employer has to take such steps as it is reasonable to take in all the circumstances to avoid that disadvantage.
Guess what? The reasonable adjustment duty applies to recruitment practices as well as arrangements for existing staff.
What is a “Settlement Agreement”? (SA) (101 on Settlement Agreements)
A settlement agreement (also still sometimes referred to as a compromise agreement) is a legally binding contract between an employer and an employee.
It is used to settle any potential claims or disputes and a way to resolve a situation and avoid going to an employment tribunal or court and is often proposed during a ‘without prejudice’ or ‘protected conversation’.
How it typically works:
1. Termination of Employment: The agreement often marks the end of the employee's employment, but it can also be used in other situations, such as settlement of existing disputes such as discrimination and the employment continues (which is more rare).
2. Compensation or Financial Settlement: In exchange for agreeing not to take further legal action, the employee usually receives a sum of money, which might include notice pay, severance pay, a redundancy payment, or additional compensation for any claims they may have (such as unfair dismissal, discrimination).
3. Waiver of Claims: The employee agrees to waive (give up) any ongoing, current and future legal claims against the employer, such as for unfair dismissal, discrimination, or breach of contract. There are often exclusions to the waiver, including latent and unknown personal injury claims, accrued pension rights and rights to enforce the settlement agreement itself.
4. Confidentiality: The terms of the agreement may include confidentiality clauses, meaning that both parties agree not to discuss the terms of the settlement or the dispute publicly.
5. Legal Advice: The employee is required to seek independent legal advice before signing the agreement. This ensures that the employee fully understands the terms and consequences of the settlement. The employer usually pays for this legal advice although this is not compulsory. It is a requirement to obtain this advice in order for a settlement agreement to be legally binding.
In a nutshell: A settlement agreement can provide clarity and closure for both the employer and employee, but it’s important to ensure both parties are clear on the terms and that the employee has had proper legal advice before signing.