Jargon Buster

TBI Solicitors > Business > Employment

TERM DEFINITION

ACAS
Advisory, Conciliation & Arbitration Service.

Blue Pencil Test
An important contractual provision which ought to be included where restrictive covenants have been drafted. A 'blue pencil' test allows a line to be drawn through an unenforceable part of a clause so that the rest of the clause remains enforceable.

Bumping
Practice by which after a redundancy process an individual whose job is not redundant is 'bumped' by an employee who had initially been selected for redundancy. Employers who do not direct their minds to bumping junior employees in a redundancy process may find themselves liable to claims for unfair dismissal. Advice should always be sought.

Code of Practice
There are various codes of practice issued by various institutions. The most well known codes of practice in the employment law field are the ACAS Code of Practice on disciplinary and grievance procedures and various codes of practice issued by the Information Commissioner on subjects such as monitoring of employees and medical records. Codes of Practice are not legally binding however are highly influential in interpreting whether a party has complied with the legal minimum standards.

Compromise Agreement
A binding settlement in which an employee agrees to 'compromise' certain employment related claims in return for the payment of a sum of money. There are strict rules concerning the construction of such an agreement.

Constructive Dismissal
Where an employer commits 'Repudiatory' breach of contract and the employee resigns immediately as a result of that breach. The employee may be treated as dismissed but that dismissal may not necessarily be fair. There is raft of case law concerning constructive dismissals and concerning resignations 'in the heat of the moment'.

Continuing Act
A concept often applied to discrimination. The limitation date for bringing a discrimination claim is 3 months from the last act of discrimination. There has been a long drawn out process of related discrimination that may be deemed to be a 'Continuing Act' so that the claim may include the whole course of discriminatory conduct so long as the last act was within the 3 month limit.

Continuity of Employment
  Many employment rights are based on an employee working for the same employer continuously for 1 year. Basically this means unbroken service. The law sets out various acts which can break continuous service, and some which do not.

Contract for Services
Generally speaking a consultancy agreement of an independent contractor which does not carry most employment rights.

Contract of Service
Generally speaking an employment contract.

Contracting Out
An employer may decide part of its business is not profitable for it to run itself (for example a staff canteen or a cleaning operation). It therefore employs a third party to run it, thus, 'contracting out' that part of the business. This has ramifications in 'TUPE' situations as often the employees will transfer to the new business.

COT 3
When a binding settlement to an employment dispute is reached through the conciliation of 'ACAS' the settlement is recorded on a form called a 'COT3'.

CRE
Commission for Racial Equality.

DRC
Disability Rights Commission.

ECHR
European Court of Human Rights.

EDT
Effective date of termination. The date employment terminated at the instigation of either party.

EOC
Equal Opportunities Commission.

ERA
Employment Rights Act 1996

ET
Employment Tribunal

ET1
An employee's application / claim form in the Employment Tribunal.

ET3
An employer's / business' response to an employee's claim in the Employment Tribunal.

Express Term
Term of a contract or a term which has been agreed by the parties in writing or verbally.

Frustration
Without the fault of either party some event occurs which prevents the employment contract being performed. Such events may include imprisonment for a long term, the death of either party or long term illness or injury. It is not easy for a party to establish frustration.

Garden Leave
A term often placed in the contract of employment of a senior employee. During the employees notice period, the practice permits an employer to order the employee not to attend the place of work throughout the duration of the investigation / notice period. As the individual will still be an employee they are still bound by all their employment duties. This is a very effective way of protecting the interests of the business.

Golden Parachute Clause
A clause in a contract of employment guaranteeing a senior employee a large termination payment.

GOR
Genuine Occupational Requirements. Complex concept in discrimination law allowing discrimination in certain circumstances.

Gross Misconduct
A serious disciplinary offence committed by an employee such as fighting or theft. Such a serious offence amounts to a 'Repudiatory Breach' of contract which entitles the employer to treat the contract at an end. The employer is therefore entitled to 'Summarily' dismiss the employee. Advice should always be taken.

Implied Term
The law will imply various terms into a contract of employment such as a duty to provide work, a duty to indemnify an employee, a duty of mutual trust and confidence, a duty to give personal service, duty of fidelity and good faith, etc

Injunction
A restraining order preventing a party from doing an act. For example, an injunction may be granted to prevent an employee breaching a restrictive covenant after the termination of their employment.

Lay off
Workers may be laid off if there is not enough work for them to do. There are strict legal guidelines governing lay off and employers need a contractual right to lay workers off. Lay off is only a temporary solution and not an alternative to redundancy.

Mitigation
An employee has a duty to 'mitigate' losses for example where they have been unfairly dismissed and/or discriminated against. This means that an employee has a duty to keep their losses to a minimum and accordingly they must seek to find alternative employment as soon as possible.

Mobility
Clause A clause which can be written into a contract of employment obliging an employee to work anywhere within a defined area (for example several sites belonging to the employer).

PILON
Payment in lieu of notice.

Questionnaire
A useful tool for an employee to obtain information to assist them in bringing a discrimination claim or an equal pay claim. An employee can serve a 'questionnaire' on their employer. There are detailed rules as to how an employer must respond.

Reasonable Adjustment
A concept used in disability discrimination. An employer has a duty to make 'reasonable adjustments' for disabled employees. A reasonable adjustment may mean something as simple as altering an employee's desk or it may relate to adjusting the premises to allow access for a disabled employee.

Re-engagement
After an employee has lost their job they are given a different job with the same employer, that employer's successor or an associated employer. An employee can apply for re-engagement on his/her 'ET1'

Re-instatement
An employer is given his old job back after having lost his job. A dismissed employee can apply for reinstatement on his/her 'ET1'.

Repudiatory Breach of Contract
A very serious breach of contract going to the very heart of the employment relationship. Such a breach may entitle the innocent party to treat the contract as at an end.

Restrictive Covenant
A restriction on the activities of an employee after the employment relationship is at an end. Such a restriction must be carefully drafted into the contract of employment.

Risk Assessment
An employer weighs up the risks against the benefits in certain circumstances, for example pregnant employees attending work, and establishing the need to monitor employees. Decisions can then be made based upon the findings.

Summary Dismissal
Immediate dismissal without notice. Advice should always be taken before dismissing in this way.

TUPE
The Transfer of Undertakings (Protection of Employment) Regulations. Concerns business transfers.

Vicarious Liability
Doctrine by which an employer is liable for the actions of its employees done in the course of their employment.

Wrongful Dismissal
Dismissal in breach of contract. This will often mean dismissal without having given notice. A wrongful dismissal can be fair or unfair.

WTR
Working Time Regulations 1998.

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