Employment advice for employees
We understand that a great deal of your waking day is spent at work. Hours have increased, along with the stresses and strains of modern life. It can therefore be particularly distressing if you have a problem at work, or feel that you are being treated unfairly. We are equipped to advise you speedily and with sensitivity on a range of employment matters including:
- Wrongful, unfair or constructive dismissal
- Redundancy
- Discrimination on the basis of sex, race, disability, age, religious belief or sexual orientation and victimisation
- Harassment
- Maternity, paternity or other parental rights
- Equal pay
- Advising on compromise agreements
- Outstanding payments
- Health and Safety
- Grievance and Disciplinary Procedures
- Representation in Employment Tribunal Proceedings
Wrongful, unfair and constructive dismissal
A dismissal is defined as the termination of employment by the employer, the employee's resignation amounting to constructive dismissal or the expiry of a fixed-term contract without its renewal.
Wrongful dismissal
Wrongful dismissal arises where an employer has broken the contract of employment with the employee. Wrongful dismissal, which is based on contract law, should not be confused with unfair dismissal where the remedies are contained in legislation.
The most common cause of wrongful dismissal is where an employee is dismissed either without notice or with insufficient notice. However, if an employee commits a serious breach of contract, for example fraud on the employer, then the employer may be able to justify dismissing the employee without notice - summary dismissal).
RNBDS can advise you in connection with a wrongful dismissal claim and can assist you in bringing that claim to either the Employment Tribunal or the appropriate court, depending on the value of the claim.
Unfair dismissal
Dismissals can be both fair and unfair.
Employment law legislation allows five reasons which are capable of justifying dismissal:
- Conduct
- Capability
- Redundancy
- A statutory requirement
- Some other substantial reason
Legislation also provides numerous situations whereby a dismissal will be held to be automatically unfair, for example, if you were dismissed because of your membership of an independent trade union.
If your employer has a valid reason for a dismissal, he must still act reasonably in all the circumstances in dismissing you for that reason, or else the Tribunal may rule that the dismissal was unfair.
Determination as to whether your employer acted reasonably in dismissing you can involve a consideration of your employer's actions and behaviour leading up to the dismissal, in addition to the way the dismissal was carried out. The Tribunal will also assess whether your employer adhered to appropriate disciplinary procedures.
Constructive dismissal
Constructive dismissal can arise where you resign because of conduct by your employer.
For a Tribunal to decide that you have been constructively dismissed, your employer's conduct must amount to a ‘fundamental breach of the employment contract'. In essence if your employer has made your life very difficult and you feel that you cannot remain in their job. Examples of this could be your employer not supporting you as a manager in difficult work situations, or harassing or humiliating you, particularly in front of other less senior staff.
The terms of the employment contract include written and oral terms, in addition to what is implied to make the contract workable, such as a term that the employer will treat the employee honestly and with good faith.
We are able to advise employees who feel they may have a case for constructive dismissal. If you have already resigned then it is important to get legal advice as a matter of urgency, as there are strict time limits. If you are considering resigning, it is equally important to speak to us. Constructive Dismissal claims can be very difficult to win as an employee, and early advice could affect the future success of your claim.
Eligibility and time limits
If you believe that you have been dismissed unfairly you may make a complaint to the Tribunal provided that you have worked for your employer continuously for at least one year, including any statutory period of notice.
However, you could also make a complaint regardless of your length of service in a number of specified circumstances, for example, if the dismissal is related to you taking maternity leave or is a dismissal for a reason relating to Trade Union membership.
A claim for unfair dismissal must generally be brought within three months of a dismissal. It is therefore important that you contact us as soon a dismissal has occurred.
Redundancy
If you worked for your employer for two years and have been dismissed on the basis of redundancy, your will be entitled to a tax free payment calculated according to your age, length of service and gross weekly wage.
Dismissal on the grounds of redundancy can be fair provided that the redundancy grounds genuinely exist, you are treated fairly in the procedure prior to the decision to dismiss, the redundancy is provable on its facts and you were fairly selected and consulted with a view to avoiding redundancy.
If believe you have been treated unfairly, or that proper procedures have not been followed, we are able to assist.
Discrimination and victimisation on the basis of sex, race, disability, age, religious belief or sexual orientation
If you believe that you have been discriminated against on the basis of your sex, race, disability, age, religious belief or sexual orientation in respect of recruitment, promotion, access to benefits and dismissal, you could be entitled to make a claim under the relevant discrimination legislation.
We can assist by advising you about making a claim and representing you if you decide to go ahead.
Sex discrimination
Sex discrimination can be both direct and indirect.
Your employer could be discriminating directly against you if, on the grounds of your sex, your employer has treated you less favourably than another person, real or hypothetical.
Your employer could be discriminating against you indirectly if they impose a requirement or condition which when implemented disadvantages a greater proportion of your sex than the other. Several factors need to be present in order for your employer's action to constitute indirect discrimination, and we would be able to advise you on this accordingly. Similarly, we would seek to advise you on any exceptions to the legislation.
Race discrimination
It is unlawful for your employer to discriminate against you on the basis of your colour, race, nationality, ethnic or national origins.
As with sex discrimination, race discrimination can be both direct and indirect, although exceptions can apply.
Disability discrimination
The Disability Discrimination Act 1995 introduced significant rights for disabled people. All employers, however small, are subject to its provisions. The Act also provides definitions of ‘disability'. We are able to advise you if your disability is covered by the Act.
Discrimination can occur when you are treated less favourably than other people for a reason related to your disability. A Tribunal may also rule that discrimination has occurred where an employer fails to make ‘reasonable adjustments' to ensure that you are not placed at a disadvantage in comparison to an able bodied counterpart.
A discrimination claim relating to a person's disability must generally be brought within three months of the act complained of. Therefore, it is important to contact us as soon as possible.
Age Discrimination
Since 2006 Age Discrimination has been unlawful. You should not be discriminated against because of your age, and you have the right to not be denied employment or harassed because of your age. In most cases, workers of all ages will have an equal chance of training and promotion and we can advise you if you feel you have been discriminated against because your employer or a potential employer has decided you are either too young or too old.
Religious Belief
If you feel you have been discriminated against on the grounds of your religion or belief you may be protected by the law. It is unlawful to discriminate in recruitment, selection, training, promotion, selection for redundancy or dismissal.
The law applies to discrimination on grounds of religion, or religious or philosophical belief. It covers discrimination on grounds of perceived as well as actual religion or belief and the religion or belief of someone with whom the person associates.
Direct discrimination may occur in areas such as refusing to promote somebody because of their religion.
Indirect discrimination occurs when an employer applies a provision, criterion or practice which disadvantages people of a particular religion or of particular religious or philosophical beliefs and which cannot be justified.
The regulations also outlaw harassment - unwanted conduct that violates people's dignity or creates an intimidating or offensive atmosphere.
There are no length-of-service or age requirements in bringing a claim.
Sexual Orientation Discrimination
If you feel that you have been the subject of homophobic abuse or discrimination whilst at work, there are steps you can take and we can assist you.
The Sexual Orientation Regulations 2003 prohibit discrimination against not just lesbians and gay men, but heterosexual and bisexual people as well. Perceived sexual orientation is also included, to address a situation where someone is discriminated against because he or she is thought to be gay or lesbian. This definition enables gay applicants not to have to ‘come out' in order to bring a claim, and also protects those heterosexual applicants that become the subject of stereotypical homophobic assumptions.
It is unlawful to discriminate directly on the grounds of sexual orientation. Examples of direct discrimination include not offering a LBG person employment, or not offering a LBG person who is in a civil partnership the same benefits that a married person is offered. Invitations to office parties are a prime area of potential discrimination. If your same sex partner has never been invited to office parties even though everyone else can take their husbands, wives or partners, you are being discriminated against.
Indirect discrimination is also unlawful. If for example, your company arranges a conference in a country where homosexuality is illegal and there is no good reason for it to be held there, this could be classed as indirect discrimination. In addition harassment is unlawful. This includes unwanted conduct that violates people's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.
Victimisation
Victimisation can describe an action by your employer against you because you initiated or were involved in complaint proceedings. You may have been the person making the complaint, or you may simply have been a witness.
A clear example of this is if your employer refused to promote you because you had invoked a grievance procedure , or you gave evidence against your employer at a tribunal.
Victimisation can take place after employment has finished, for example, if your employer refuses to give you a reference , branding you a troublemaker because you were involved in proceedings.
Harassment
Sexual harassment
Sexual harassment, defined as unwanted conduct of a sexual nature, constitutes direct unlawful discrimination.
Employers may be liable for discriminatory acts of a sexual nature carried out by their employees, unless the employer can demonstrate that such steps were taken as were reasonably practicable to prevent such conduct.
A successful claim for sexual harassment to the Tribunal can result in a declaratory order, compensation (including compensation for injured feelings) or a recommendation of remedial action.
Racial harassment
As with sexual harassment, racial harassment can take many forms and is also unlawful.
A successful claim for racial harassment to the Tribunal can result in a declaratory order, compensation or a recommendation of remedial action.
Paternity and maternity leave and pay
We can advise you on your entitlement to maternity or paternity leave and pay and the action that can be taken if your employer does not carry out their obligations.
Equal Pay
It is unlawful for employers to discriminate between men and women in terms of their pay and conditions where they are doing the same or similar work; work rated as equivalent; or work of equal value. Men and women have the right to equality in the terms of their contract of employment, not only for pay, but also other terms and conditions such as bonus payments, holidays and sick leave.
If you believe that you may have a claim for equal pay, we can assist. In the first instance it is likely to be in everyone's interest to try and resolve any problems within the workplace. If you consider that you have been discriminated against under the Equal Pay Act we can assist you in making a claim to an employmenttribunal.
Compromise agreements
If you believe that your working relationship is coming to an end but who do not wish to resolve grievances with your employer in the Tribunal, you can enter into a compromise agreement.
Under a compromise agreement, your employer is not required to follow the correct employment procedures. You promise them that they will not have to defend a Tribunal claim. In return you receive an agreed sum and may be able to negotiate other favourable terms, such as agreeing the wording of a reference.
Compromise agreements can provide an effective method of avoiding legal proceedings and the resulting costs. They can also be much less stressful. We can help advise, negotiate and draft compromise agreements for you which will ensure that you achieve the best outcome possible.
Outstanding payments
If you have been dismissed from your employment and there remain outstanding payments owed to you by your employer, we can assist you to recover these payments.
Health and safety in the workplace and health and safety dismissals
The law imposes a responsibility on the employer to ensure the health, safety and welfare of all their employees whilst at work. Much of the law in relation to safety in the workplace is contained within the Health and Safety at Work Act 1974.
Please see the Health and Safety section of the website for further information.
You can be unfairly dismissed if your employer dismisses you for taking steps to protect yourself or others from danger in the workplace. Such steps must be ‘appropriate', which will be considered in light of all of the circumstances.
If you are dismissed on the grounds of health and safety, there is no age limit or qualifying period of service.
Grievance and disciplinary procedures
We can also provide practical and supportive guidance to employees in relation to:
- The legal requirements relating to disciplinary and grievance procedures;
- grievance procedures; and
- The conduct of disciplinary and grievance hearings
Representation in Employment Tribunal Proceedings
We understand that employment tribunal proceedings can be extremely daunting for those involved, particularly if you are an individual battling against people you used to work with. Our dedicated team comprises highly experienced individuals with strong advocacy skills. We will advise and support you through the whole process, whilst striving for the best possible outcome.
Funding
RNBDS offers a variety of funding options, including in some circumstances ‘no win no fee' arrangements. Each case will be considered on its own merits, in order to ensure that our clients receive the most cost effective service.
Contact us
Please contact us with any employment related queries.