Employment rights Archives

The Employment Relations (Flexible Working) Act 2023

Posted on 21 August 202322 March 2025 by Sarah O'Sullivan

The Employment Relations (Flexible Working) Act 2023, which received Royal Assent in July 2023, is intended to give workers more flexibility over when and where they work. This legislation is expected to come into force in the summer of 2024, based on the timescale from Royal Assent.

Chartered Institute of Personnel and Development (CIPD) research (Flexible and hybrid working practices in 2023 | CIPD) indicates that 40% of employers have seen an increase in requests for flexible working following the Covid-19 pandemic, and 66% of organisations saying they believe it is important to provide flexible working as an option when advertising jobs.

Employers and employees should therefore be mindful of the looming changes to the process surrounding flexible working requests.

Who can make a flexible working request?

Employees with at least 26 weeks of continuous employment are currently entitled to make flexible working requests to their employer. It should be noted, however, that although this has remained a requirement under the new legislation, it is anticipated that further legislation will eventually be implemented to remove this requirement, making flexible working requests a day one right for employees. Of course, any employee can make a request but employers are not obliged to consider requests unless made by eligible employees.

What are flexible working requests?

Flexible working requests should be made when an employee wishes to make a change to any of the following:

the hours they work
the times when they are required to work
the place they work (i.e. working from home, or another of the employer’s sites).

Some examples of how these changes could be implemented in practice include:

reducing hours to work part-time
changing start/ finish times
compressing hours to work the same number of hours over fewer days
job sharing.

Employees can also request the change be limited to specific days or weeks only (e.g. only during school term time), or for a limited period such as 6 months only.

How an employee can make a flexible working request

To meet the statutory requirements of a formal flexible working request, applications should:

be made in writing
be dated
state that it is an application made under the statutory procedure
specify the change the employee is seeking
specify when they wish the change to take effect
state if and when the employee has previously made an application.

An important change in the new legislation is, previously, there was an additional requirement for the employee to explain the effect that flexible working would have on the employer, and how the employer might deal with such an effect. This requirement has been removed by the new legislation.

How an employer should deal with a flexible working request

Under the new legislation, employers are required to deal with requests within two months of receipt (as opposed to the previous three months), unless both parties agree to extend this period.

Employers must deal with flexible working requests in a reasonable manner, and can only refuse requests for the following reasons (which remain unchanged under the new legislation):

the burden of additional costs
detrimental effect on the ability to meet customer demand
inability to reorganise work among existing staff
inability to recruit additional staff
detrimental impact on quality
detrimental impact on performance
Insufficiency of work during the periods the employee proposes to work
planned structural changes.

The new legislation also requires employers to consult with the employee before refusing a request. The new legislation does not provide guidance around what is required in such a consultation, but the ACAS Code of Practice does contain some guidance around this. The ACAS guide also has content covering dealing with requests in a “reasonable manner”. ACAS is currently in the process of updating this code.

If a flexible working request is accepted, the employer should issue an updated statement of main terms or provide a statement of changes to employment (under section 4 Employment Rights Act 1996).

If the request is denied, the employer must write to the employee stating this, keeping in mind that under the new legislation, the employee must be consulted before a request can be denied. Employers should note that although there is no statutory right to appeal the decision, employees now have the right to make up to two flexible working requests within any twelve month period, so if an employee’s first request is denied, they are entitled to make another one.

Employers need to stay up to date

With CIPD research showing that 49% of employers were previously unaware of the impending changes to flexible working legislation (Flexible and hybrid working practices in 2023 | CIPD), employers should ensure that they are aware of the changes as set out above. They should also consider updating any existing policies and procedures relating to flexible working arrangements to ensure that they are in line with the statutory changes and new time limits.

With the new legislation anticipated to come into force next year, we understand the ACAS Code of Practice on handling requests for flexible working is also to be updated. The purpose of the ACAS code is to “provide employers, employees and representatives with a clear explanation of the law on the statutory right to request flexible working, alongside good practice advice on handling requests in a reasonable manner” (Acas consultation on the draft Code of Practice on handling requests for flexible working | Acas).

Employers should look out for updates in relation to the new ACAS code and ensure that they are now complying with the new statutory requirements ahead of the implementation of the new Act, whilst also keeping in mind the likelihood of flexible working requests becoming a day one right.

What could happen if I unreasonably refuse a flexible working request?

If a tribunal upholds an employee’s complaint concerning the handling of a flexible working request, you may be required to reconsider the employee’s application. Alternatively, or in addition, the employee may be awarded compensation, additionally, issues over flexible working could also lead to other claims (see below).

Sex discrimination claims and flexible working

A mishandled flexible working request might lead to a potential discrimination claim. For example, if your flexible working policy has a greater impact on one sex over another (or on one particular employee because of their sex) you may face claims of indirect sex discrimination.

The ACAS guidance on flexible working, mentioned above, recommends that employers and managers should avoid making assumptions when assessing flexible working requests. All requests should be assessed consistently and with regard to business circumstances.

However, acting consistently does not necessarily mean that you can adopt a blanket flexible working policy – accepting or refusing all requests. If a dispute arises, a tribunal will look at any discrepancies in the acceptances or refusals of flexible working requests.

If your policy is found to be indirectly discriminatory, it might be possible to argue that it was a proportionate means to a legitimate aim – i.e.: that there was a good business, commercial or administrative reason for the difference in treatment.

Consideration of flexible working requests should be based on real operational needs and decisions should be objectively justifiable.

Flexible working and constructive dismissal

In general terms, a constructive dismissal occurs where an employee feels forced to resign because of the actions of their employer.

To be successful in a claim, the employee must show that their employer has committed a fundamental breach of contract that is sufficiently serious to justify the employee’s resignation – and that the resignation was due to that particular breach. The breach could be a one-off event or just one instance in a longer history of events.

Unreasonably refusing an employee’s flexible working request, or even handling a reasonable refusal badly, could constitute one of these events and expose you to a potential constructive dismissal claim.

Advice for employers on home working

Posted on 9 December 202222 March 2025 by Sarah O'Sullivan

The expectation for flexible working is becoming more and more in demand. According to the office for national statistics, more than 8 in 10 workers who had to work from home during the coronavirus pandemic said they planned to do hybrid work.

Government proposals around changing the rules around flexible working requests include reducing the formal content required for a request, day one rights, as opposed to eligibility currently subject to 26 weeks’ service and allowing up to 2 requests a year. The debate continues around finding arrangements that work for employees and employers and with employers often having to approach how they deal with requests and principles of flexible working, carefully, to reduce the risks of claims and attract and retain good calibre candidates to jobs.

In the current economic climate, businesses may be reassessing their requirements with consideration being given to reducing office space and rental costs, which may result in more companies considering a home-based workforce for the long term.

As we continue to debate what the ‘new normal’ looks like, it is evident that this is something of a moving target with expectations, trends and business requirements seemingly changing quickly. Against this background, it is worthwhile considering what the legal implications are for employers on some of the key considerations around home working.

Contracts of employment

Many employees will be working under contracts of employment with no specific provision to work from home, and the place of work will most likely be stipulated as the employer’s premises.

Unless there is a written term in the contract of employment permitting home working, employers would need the agreement of the employee in order to insist on home working. Imposing a unilateral change without the agreement of those affected employees could constitute a breach of the employment contract. What happens in practice, though, may also be relevant, whether that is around the employer and/or an employee wanting to revisit the ‘normal’ place of work and how work is delivered post Covid-19.

It is recommended that employers check the wording of the ‘place of work’ clause in their employment contracts as the wording may include a degree of flexibility in the favour of the employer, which can allow for a change in place of work on a temporary or perhaps even permanent basis.

If the contract contains wording allowing for flexibility and changes then the employer may not be in breach of the terms by enforcing a permanent switch to home working. Employers should note that it is still important for employers to act reasonably when implementing such a clause, otherwise, they risk breaching mutual trust and confidence – This is a term implied by law in all employment contracts and breach of it is commonly used in constructive unfair dismissal claims. It is also worth keeping in mind that terms can become part of the contract by “custom and practice”. If in doubt, employers should seek legal advice on their particular documentation and issues arising.

In any event, employers are well advised to ensure they communicate with staff in advance and where appropriate, consult as well as set aside reasonable time before implementing changes to the place of work to allow employees time to prepare and adjust.

Where consultation is needed on employment contract changes

Where there is no flexibility to the place of work clause the employer will need to adopt a different approach. Employers will need to discuss the possibility of working from home with employees and consult with them in order to get their agreement to home working along with the necessary change to the terms of their contract. Again, communication is key and a lack of communication is often a key part of disputes arising.

Call our specialist solicitors on 0808 231 1320

Dealing with a refusal to agree to contract changes

If however, employees in this situation maintain a refusal and the employer can demonstrate that:

there are good business reasons for switching to a home-working model,
it has undertaken appropriate consultation and
it has followed a fair procedure;

then it may be possible for an employer to dismiss.

In appropriate circumstances, such dismissals can be considered fair with the employer relying on “Some Other Substantial Reason” as the potentially fair reason to dismiss, provided the employer can demonstrate that the dismissal was reasonable in all the circumstances.

This should be a last resort if there is a failure to agree and the alternatives have been considered. Such dismissals are subject to due process and bring with them the risk of, amongst other things, unfair dismissal claims for eligible employees. Employers who approach such matters without due care will be exposed to claims and again, seeking professional advice early is prudent.

Employers who are faced with this scenario and are looking to dismiss should look to offer those refusing employees re-engagement on the new amended terms, including the homeworking provisions. Consideration should also be given to the numbers of employees affected: if this is 20 or more then collective consultation may need to be undertaken with potentially severe penalties if the right steps are not followed.

Duties towards employees when working from home

Where employees are working from home, employers should ensure that they are treated in the same manner as all other employees. Home-based employees are entitled to the same rights and benefits as any employee working at the employer’s premises.

An employer has both statutory and common law duties towards its employees and is responsible for an employee’s health and safety, “so far as is reasonably practicable”. In practice, this means that employers should conduct a suitable risk assessment of all work activities carried out by homeworkers to identify any possible hazards. Employers will then need to consider these obligations to decide what measures need to be put in place.

Confidentiality and data protection issues when working remotely

In addition to the health and safety aspects of home working, employers will need to consider how to safeguard business confidentiality and data protection requirements with increased chances of breaches taking place when outside of the employer’s premises.

Careful consideration is needed given the potential damage and loss that could be caused through unauthorised breaches, including significant fines that can be imposed by the Information Commissioners Office for breaches of data protection legislation – which has been strengthened since 2018.

It is also key for employers to ensure that they have suitable arrangements in place to help maintain contact with other staff, including office-based and home-workers, in order to limit issues that could arise through increased isolation of working remotely.

Where reasonable adjustments may be necessary

Where an employee has a disability, then consideration should be given to whether the provision of some equipment is required in order for the employer to comply with their duties under the Equality Act 2010 to make reasonable adjustments.

Right to requests for flexible working

It is still the case that employers are not required to agree home working requests from staff. There is no right to work from home and instead, presently, employees with 26 week’s service have the right to request flexible working arrangements.

Can my employer change my contract without my consent?

Posted on 13 July 202022 March 2025 by Sarah O'Sullivan

The basis of your employment relationship is typically set out in a contract of employment. Certain key information about your terms is required by law such as job duties, salary, working hours and holiday.

The contract may also include terms regarding confidentiality and what happens when you leave (restrictions). It is important that the contract accurately reflects the working relationship so both the employer and employee know where they stand. Sometimes, however, your employer, or you, may wish to change the contract you originally agreed.

Your employment contract is usually a written document. Once you have started working under the contract, it is usually taken as proof that you accept its terms and conditions.

Can my contract be changed?

During the course of your career, especially if you stay with one organisation for some time, it’s likely that your contract or terms of employment will change. Typically you will receive pay rises, and for example, your contract may change to reflect different duties you take on or a promotion. You might also request a change which your employer may agree to. If everyone is happy to change the contract then this can simply be recorded in writing within a statement of change.

If you are not happy with the changes your employer suggests, you may not have to accept the changes – but this depends on the wording of your contract and the nature of the changes.

Your existing contract and job description

We recommend you always start by checking your current contract. If you don’t have a copy of your contract, ask your employer.

There may be clauses in your contract which gives your employer the right to make reasonable changes without your consent, for instance:

A general ‘variation clause’ might allow your employer to make some changes to your terms
A ‘flexibility clause’ might allow your employer to change your hours
A ‘mobility clause’ might allow your employer to change where you are based. You may be required to work from a different location.

You may be able to challenge the changes your employer wishes to make, even if one or more of these clauses feature in your contract. Much will depend on whether the changes proposed are allowed by the wording of the contract, and are reasonable. If your employer wants to change your contract there may be various options open to you.

What can I do if my employer makes changes to my contract?

Your employer may ask you to agree to some new terms in which case they should be explained to you and ideally, sent to you in writing. You should then be given time to consider whether or not you wish to accept them.

If the change is simply imposed on you and you don’t wish to accept it but you continue working anyway, you must decide whether you are content to agree or not. You can make it clear that you are working under protest and do not accept the new terms but if you do not, or if you continue working under those new terms for some time, you are likely to be considered to have agreed to the change.

You could refuse to work under the new conditions and continue to work as you have been under your original contract. If the change is something more fundamental which really changes the nature of your job, you may wish to resign and make a claim for constructive dismissal. This is, of course, a big step which requires careful consideration. We recommend you contact us if you are contemplating resigning. You cannot, normally change your mind once you have left, and there are significant hurdles to overcome for a claim for constructive dismissal.

If your employer terminates your contract and offers you re-employment on the new terms, you should seek specialist legal advice and Tees can help you. There are some circumstances when the employer may be able to do this, and others where you may have been unfairly dismissed, or may be entitled to a redundancy pay-out. Each case will depend on its facts.

Can my employer legally reduce my work hours without my consent?

Check your contract to see if your employer has included the option to reduce your working hours. It would be in the normal working hours section of the document and there may have been some flexibility written into your terms to allow for quiet periods in the business or in anticipation of a downturn in the economy. There may also be “pay-out” terms in your contract.

If this is not the case you may be able to understand the reason for the reduction in your hours and be prepared to accept them as a short-term measure. However, your employer cannot legally reduce the number of hours and if you don’t wish to accept the new hours you should, in the first instance, discuss the matter with your HR department.

Can a company legally reduce my pay?

Your employer cannot reduce your pay without your consent. If your employer tries to reduce your pay without your consent, you have the same options as those above.

If your employer asks for your consent to reduce your pay – and you do not accept – they may opt to terminate your contract on notice. Your notice is set out in your contract. Your employer may then offer you a new contract, with the reduced salary, although this is not guaranteed.

If your employer is seeking to reduce your pay, it is worth taking specialist advice early on for a clear picture of your options and next steps, employers must follow the correct process when making changes to your contract – for example, if enough employees are affected by the proposed changes, a consultation may be required.

Can my employer deduct money from my wages without my consent?

There are some normal deductions from your wages that your employer is allowed to make such as income tax, national insurance and student loan repayments. A deduction can also be made if you were overpaid in a previous payment. Your employer isn’t obligated to let you know beforehand about deductions because of a previous overpayment.

If you think that some money has been deducted which you weren’t expecting you can discuss it with your employer. They should clearly explain why the money was deducted. It may be a miscalculation of there could be a genuine reason. If it remains unresolved you will need to raise a formal grievance detailing the money you believe you are owed and a timeline.

You can raise a grievance whether or not you are still in that employment.

Advice from an employment solicitor about changes to your contract

If you are not able to resolve the problem through discussion with your manager and/or your HR department then you may wish to raise a formal grievance.

“As with any dispute at work it can be worth it, in the first instance, to discuss the matter with your employer to try and find a resolution that works for all parties” says Rob Whitaker, Partner at Tees Law. “It is desirable to maintain your employment relationship going forwards and so the quicker a solution is found the better for both employer and employee. Sometimes, however, this is not possible and you may need to chat the situation over with an employment law specialist to find out your options and what each one entails”.

If your contract at work has been changed without your consent and want help at any stage of the process talk to our employment law specialists. We’ll listen to your situation and advise you on the best way to move forward.

Call our specialist Employment Law solicitors on 01245 293197 for an initial chat, at no obligation, or fill out our enquiry form and a solicitor will get in touch.

Bullying and harassment at work

Posted on 20 March 202022 March 2025 by Sarah O'Sullivan

With widely reported resignations resulting from allegations of bullying behaviours, both harassment and bullying is an increasingly common issue faced by employers.

This article sets out information for employers on the issues surrounding bullying and harassment in the workplace, what they should do and what potential liabilities they could be responsible for.

What is workplace harassment & bullying?

Harassment is when behaviour from a person or group of people is unwanted behaviour makes you feel uncomfortable, intimidated, degraded, humiliated or offended.

Bullying has no legal definition with ACAS characterising bullying as “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse if power through means that undermine, humiliate, denigrate or injure the recipient”.

These behaviours can have a negative effect on employees often resulting in increased absence from sickness, anxiety/depression, low motivation and reduced productivity in the workplace.

Social media harassment

Bullying and harassment is not just face to face, it can also happen by letter, email, phone or even via social media.

With the ever-increasing speed of technological changes, there are implications for what is classed as bullying and harassment. The Equality and Human Rights commission has issued new guidance on workplace harassment, warning that comments posted on social media could be classed as harassment. This adds a whole new dimension to the obligations that are faced by employers in this complex area of law.

Harassment guidelines could become law

There are plans for the guidelines to become statutory measures enforceable by law. Therefore it’s important for employers to be aware of what bullying and harassment is, their duties and responsibilities to their employees, as well as potential risks. What is the difference between bullying and harassment?

Bullying and harassment are similar in terms of the behaviours exhibited and how they make the victim feel.

To be protected under the Equality Act 2010 the conduct must be unwanted, have the purpose or effect of violating that individual’s dignity and be related to one of the protected characteristics, which are:

age
sex
race
sexual orientation
religion or belief
disability
gender reassignment
pregnancy and maternity.

Harassment where it is not related to a protected characteristic, could also be protected under the Protection from Harassment Act 1997 and civil claims can be brought by those affected.

Common types of bullying and harassment

Bullying and harassment behaviours in the workplace can include:

unwanted physical contact
workplace ‘banter’
unwanted shouting
unwanted remarks
freezing employees out and ignoring their contribution
denying someone training or promotion opportunities
spreading rumours
misuse of power or position
overbearing supervision
withholding information which can affect someone’s performance
persistent criticism or undermining someone.

What can employers do to prevent bullying and harassment?

Employers should develop and circulate policies dealing with bullying and harassment, including what standards of behaviour are expected, what working relationships should look like and how to professionally manage these and deal with any conflicts.

Where employers can show that they took “all reasonable steps” to prevent employees behaving in such a manner, then they will not be liable for acts of discrimination. However simply having a policy is unlikely to be sufficient. Taking reasonable steps might mean having well-publicised policies but also undertaking effective and regular training of staff on the issue.

Staff should therefore be given training on how to act consistently and apply the bullying and harassment policy, to ensure they are familiar with the processes and how to follow them. Employees should be encouraged to feel that they can talk to someone in authority, for example, their line manager or someone in HR, and they will be listened to and have their concerns taken seriously; also that they will not be censured for speaking out.

Training could also be given on the impact and damage that certain behaviours can have on those affected. Managers in particular must be trained about their responsibility to identify and prevent such behaviour.

How to spot bullying and harassment

Staff can suffer in silence – feeling too anxious to tell someone about it for fear of not being believed, not being taken seriously or it getting worse as a result of speaking out. Good practice for employers includes being aware that it might be happening even if the person doesn’t report it. Things to look out for include:

increased absences from work
people disappearing from their desks, to get away -for example, go to the bathroom for long periods
declining standards of work, especially if that is not typical
people asking to move their desk or other location in which they work
unexpected outbursts indicating stress
colleagues avoiding or ignoring each other

What should employers do when there is a report of bullying or harassment?

According to a report published by the Chartered Institute of Personnel and Development, a quarter of employees think their company turns a blind eye to workplace bullying and harassment; so it is vital that employers react promptly and appropriately to complaints raised.

Where there is a complaint made, ensure that there is an effective resolution procedure so that the organisation can act promptly and conduct a thorough investigation, acting in a fair, confidential and sensitive manner. This will usually be set out in the anti-bullying and harassment policy or via a grievance process.

Where a complaint of bullying and harassment is well founded, employers will need to consider what steps to take against those who have carried out the conduct. These would usually be to consider appropriate disciplinary action under the employer’s disciplinary procedures, after an investigation has been carried out. Remember to always act with consistency.

What can employers do to support staff?

There are many ways in which employers can support affected staff, for example offer counselling to those who have made a complaint. Some employers may also offer the benefit of an external employee assistance scheme and employees should be made aware and directed to this.

If bullying and harassment leads to sickness, this will need to be managed appropriately, with support given in their return to work. It may be that the employer should consider, alongside a medical evidence or occupational health report, a phased return to work, adjustments to workload, or the possibility of a change of job or reporting lines.

Claims for workplace bullying and harassment

Bullying and harassment can lead to liability for employers as it is possible to pursue the employer for claims which relate to workplace bullying and harassment. This is because employers are normally liable for acts of their staff, whether or not they have condoned or dealt with the behaviour.

Where the treatment is related to a protected characteristic (see above) employees can pursue claims based on discrimination under the Equality Act 2010, where compensation for acts of discrimination is uncapped. If a complaint of discrimination is upheld then it is likely a Tribunal would make an award of ‘injury to feelings’ of the recipient as well as any other financial losses that follow from the acts of discrimination.

Employees may also seek to bring a claim of constructive unfair dismissal where they may attempt to show that the employer was in breach of their contract of employment and that they resigned in response to that breach. Commonly this is on the basis that a term implied into all employment contracts, dealing with mutual trust and confidence, has been irretrievably broken. This claim is limited to employees who have been employed for two years or more. If successful, the recipient is likely to be awarded a basic award (taking account of their age, length of service and pay) and a compensatory award, which reflects the financial losses incurred (e.g. loss of earnings).

Civil claims are also possible where harassment is not related to a protected characteristic and can be brought under the Protection from Harassment Act 1997.

What are my rights if my employer goes into liquidation?

Posted on 21 November 201922 March 2025 by Sarah O'Sullivan

When a business goes into liquidation resulting in large scale redundancies, employees will often be unsure on what to do and what payments they may be able to claim.

Do I get redundancy pay if the company goes into liquidation?

If your employer goes into liquidation they may not have the funds available to make redundancy payments, however you can claim certain payments from the government’s National Insurance Fund.

The National Insurance Fund is made up of National Insurance contributions which are held to be used to pay for statutory schemes such as state pensions and redundancy.

The claims you are able to make from the National Insurance fund include:

Holiday pay
Salary arrears
Statutory notice pay
Statutory redundancy pay
Pension contribution.

Those payments are however subject to certain limits, which are:

Unpaid wages – up to eight weeks pay
Statutory Notice pay – between one and 12 weeks’ pay (depending on length of service)
Holiday entitlement which has accrued but not been taken in the last 12 months
Statutory redundancy payment (which depends on age and length of service).

All of the above are also subject to a cap on a week’s pay (currently £525 per week as of April 2019), which normally increases in April each year.

It is common for the appointed company liquidators to advise employees on their ability to make a claim to the National Insurance Fund for those payments outlined, but they are often far less well informed about the claims protective awards that an employee may be able to bring.

Call our specialist solicitors on 0808 231 1320

What is a protective award?

A protective award is an award of compensation where 20 or more employees are made redundant at a single workplace, and the employer fails to properly inform and engage in consultation about those redundancies.

Employers have a duty to consult with employee representatives before the redundancies are made. Where employers have breached this duty, a claim can be brought in by the Employment Tribunal and up to 90 days’ pay (per employee) can be awarded by the Employment Tribunal.

There is no minimum length of service required to bring protective award claims but such claims must be commenced within three months less a day from the date of dismissal. It is important to note that an employee must first complete the ACAS (Advisory, Conciliation and Arbitration Service) early Conciliation process, which will need to be done directly with ACAS by filling out a form online; this has the effect of extending the time limit. The length of the extension will vary, depending on how long the conciliation period lasts and it is therefore important to take legal advice first.

Who grants a protective award?

An Employment Tribunal must be persuaded to grant a protective award to an employee, which will depend on the circumstances, reasons for redundancy or liquidation and the steps, if any, that the business took to inform employees or their representatives.

Can you make both a protective award and a National Insurance Fund claim?

A protective award is classified as arrears of pay for the purposes of the National Insurance Fund, which means that, yes, employees can make a protective award and a National Insurance Fund claim. However, an order from the Employment Tribunal making a protective award to an employee would be needed prior to the National Insurance Fund accepting and making any payment to a redundant employee for a protective award element.

It is also important to note that the eight-week limit on arrears of pay will still apply and therefore any other arrears of wages (excluding notice pay, holiday pay or statutory redundancy pay) will come out of the eight-week limit. Even where there are no outstanding wages due, this means that where an Employment Tribunal sees fit to award 90 days’ pay, the National Insurance Fund will only pay out a maximum of 56 days.

Whilst outstanding sums above the cap of eight weeks pay can be claimed from the insolvent employer directly, including any unpaid part of a protective award, it is unlikely in an insolvency situation that the employer or its liquidators would have the funds to pay.