Employment Law

The Equality Act 2010 makes discrimination unlawful. If you have been discriminated against, you can pursue a claim in the Employment Tribunal.

There are various persons who must not discriminate against you at work, including your employers, other employees or colleagues, employment agencies, and someone that an employment agency arranges for you to work for.

It is unlawful to treat someone unfairly because of a protected characteristic, such as their age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, or sexual orientation.

Unfair treatment can occur at any time during the course of someone’s employment, from the terms and conditions of their employment, to the termination of their employment, and also when someone is applying for a job.

Discrimination can be direct e.g. where someone is treated differently because of who they are, who they think they are, or because of someone they are connected to. Or indirect, e.g. where a policy or rule puts someone at a disadvantage compared to others. It can also take the form of harassment: where someone is treated in a way that is offensive, frightening, degrading, humiliating or distressing. Or, victimization: where someone is treated badly because they actually, or were thought to have, complained about discrimination.

You have 3 months from when the discrimination you are complaining about took place to issue your claim out of the Employment Tribunal.

By law, employees are entitled to take time off from work to look after a child's welfare.

Employees must have completed one year's service with an employer to qualify. 18 weeks of unpaid leave can be taken up for children under 18 years. Leave may be taken straight after the birth or adoption, or following a period of maternity leave. Employees will need to request leave giving at least 21 days' notice before the intended start date. Employers may ask for the notice to be in writing.

If an employee has completed one year's service with an employer, they are entitled to 18 weeks unpaid parental leave for each child born or adopted. The leave can start once the child is born or placed for adoption, or as soon as the employee has completed a year's service, whichever is later. Employees can take it at any time up to the child's 18th birthday.

To take parental leave straight after the birth or adoption of a child, an employee should give notice 21 days' before the beginning of the expected week of childbirth or placement. In cases where this may not be possible they should give notice to the employer as soon as possible. For example, if a child is born prematurely or where less than 21 days' notice is given where a child is to be placed with you for adoption.

Parental leave should be taken in blocks of a week or multiples of a week, and should not be taken as "odd" days off, unless the employer agrees otherwise or the child is disabled. Employees cannot take off more than four weeks during a year per child. A week is based on an employee's working pattern.

An employee will remain employed while on parental leave and some terms of the contract, such as contractual notice and redundancy terms, still apply.

Shared Parental Leave is a new right that enable eligible mothers, fathers, partners and adopters to choose how they share their time off work after their child is born or placed. This means that the mother or adopter shares some of the leave with her partner, perhaps returning to work for part of the time and then resuming leave at a later date.

Generally, an employer is not allowed to deduct any monies from an employee’s wages without the employee’s consent.

One of three conditions have to be met for an employer to lawfully make deductions from wages or take payments from a worker. The deduction or payment must be required or authorised by legislation e.g. income tax or national insurance deductions. It must also be authorised by the worker's contract - providing that the worker has been given a written copy of the relevant terms or a written explanation of them before it is made, or consented to by the worker in writing before it is made.

There are exemptions from these conditions that allow an employer to recover, e.g. an earlier overpayment of wages or expenses to a worker.

The law protects individuals from having unauthorised deductions made from their wages, including complete non-payment. This protection applies both to employees and to some self-employed workers.

There are extra protections for individuals in retail work that make it illegal for an employer to deduct more than 10% from the gross amount of any payment of wages, except the final payment on termination of employment, if the deduction is made because of cash shortages or stock deficiencies.

Workers who believe they have suffered an unlawful deduction from wages should take it up with their manager and/or HR/payroll department. If this doesn't resolve the matter, recourse may be made to formal internal procedures. Only if all else fails should a complaint to an Employment Tribunal be considered.

The introduction of The Deduction from Wages (Limitation) Regulations 2014 means that when making a claim for backdated deductions from wages for holiday pay, a two-year cap will be placed on all claims that are brought on or after 1st July 2015. This means that the period that the claim can cover will be limited to a maximum of 2 years.

These terms are used interchangeably by most people, and many definitions include bullying as a form of harassment.

In general terms, harassment is unwanted conduct affecting the dignity of men and women in the workplace. It may be related to age, sex, race, disability, religion, sexual orientation, nationality or any personal characteristic of the individual, and may be persistent or an isolated incident. The conduct complained about must be viewed by the recipient as demeaning and unwelcome in order for it to constitute harassment.

Bullying is characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient. Bullying or harassment may be by an individual against an individual, perhaps by someone in a position of authority such as a manager or supervisor, or involve groups of people. It may be obvious or it may be insidious. Whatever form it takes, it is unwarranted and unwelcome to the individual.

Examples of bullying/harassing behaviour include:

• Spreading malicious rumours
• Insulting someone by word or behaviour (particularly on the grounds of age, race, sex, disability, sexual orientation and religion or belief)
• Copying memos that are critical about someone to others who do not need to know
• Ridiculing or demeaning someone:
  • Picking on them
  • Setting them up to fail
  • Exclusion
  • Victimisation
  • Unfair treatment
  • Overbearing supervision
  • Misuse of power or position
  • Unwelcome sexual advances (touching, standing too close, the display of offensive materials, asking for sexual favours, making decisions on the basis of sexual advances being accepted or rejected)
  • Making threats or comments about job security without foundation
  • Deliberately undermining a competent worker by overloading and constant criticism
  • Preventing individuals progressing by intentionally blocking promotion or training opportunities

Bullying and harassment are not necessarily face to face. They may also occur in written communications, email, phone and automatic supervision methods, such as computer recording of downtime from work or the number of calls handled if these are not applied to all workers.

Bullying and harassment make someone feel anxious and humiliated. Feelings of anger and frustration at being unable to cope may be triggered. Some people may try to retaliate in some way. Others may become frightened and demotivated. Stress, loss of self-confidence and self-esteem caused by harassment or bullying can lead to job insecurity, illness, absence from work, and even resignation. Almost always job performance is affected and relations in the workplace suffer.

If you are being bullied or harassed at work you should first let your manager or union or staff representative know of the problem. If you do decide to make a formal complaint, follow your employer’s procedures, which should give you information about who to complain to and how your complaint will be dealt with. After investigation, you and your employer may wish to consider different ways of resolving your complaint, such as mediation or counselling. Alternatively, your employer may decide to take disciplinary action against the bully/harasser in accordance with the organisation’s disciplinary procedure.

If, despite all your efforts, nothing is done to prevent the mistreatment, you should take advice on your legal rights.

Where harassment is unlawful conduct under the Equality Act 2010, you can take a claim to an Employment Tribunal. But, first you must engage with an early conciliation procedure (through ACAS) to try and resolve the dispute.

If you resign you can claim constructive unfair dismissal, but you need to have worked for your employer for 24 months.

A dismissal occurs when an employer terminates an employee's contract.

Unfair Dismissal

Dismissal should be the last resort in terms of sanctions and employees have the right not to be unfairly dismissed. In most circumstances, employees will need to qualify before they can make a complaint to an employment tribunal. At least one year's continuous service for employees in employment before 6th April 2012, and two years for employees starting employment on or after 6th April 2012 is required.

There is no length of service requirement in relation to 'automatically unfair grounds'. These are dismissals that occur because an employee is exercising specific rights to do with pregnancy, family reasons (including parental leave, paternity leave (birth and adoption), adoption leave (or time off for dependants), representation (including acting as an employee representative), trade union membership grounds and union recognition, part-time and fixed-term employees, and pay and working hours (including the Working Time Regulations, annual leave and the National Minimum Wage).

A dismissal will normally be fair if an employer can show that firstly, it is for a reason related to an employee's conduct, a reason related to an employee's capability or qualifications for the job, because of a redundancy, a statutory duty or restriction prohibited the employment being continued, or for some other substantial reason that justifies the dismissal, and secondly, that the employer acted reasonably in treating that reason as sufficient for dismissal.

If your employer takes disciplinary action or dismisses you, they should write to you setting out the problem, then arrange a meeting at a reasonable time and place to discuss the problem. You have a legal right to ask someone to accompany you to the meeting - either a colleague from work or a trade union representative. After the meeting, your employer should send you their decision about what they plan to do in writing within a reasonable amount of time.

If you don't agree with your employer’s decision, your employer should give you the opportunity to appeal against it. You don't have to appeal, but if you later decide to go to an employment tribunal and you win your case, the tribunal may reduce any compensation awarded to you as a result of your failure to appeal.

Your employer should then arrange a further meeting to discuss your appeal. After the appeal meeting, your employer should write to you and tell you their final decision. If you're still not happy with your employer’s decision, you may want to make a claim to an employment tribunal.

Remember that, in most cases, you must make an application to an employment tribunal three months, less one day, from the date of the dismissal. If your application is received after this time limit, the tribunal will not usually accept it. However, from 6 April, the early conciliation process applies to most employment tribunal cases and will extend the original time limit. From 6 May, you must contact ACAS to start the early conciliation process, and must complete it before you can make a claim to an employment tribunal.

If they are dismissing you, in most cases your employer must give you a period of notice first. The law says most people should have a minimum period of notice. This will depend on how long you've worked for your employer.

Even if you don't have a legal right to a minimum period of notice, you will still be entitled to reasonable notice. This will often depend on how often you are paid, for example, weekly or monthly.

To claim unfair dismissal, you must usually have worked for your employer for at least a year if you started before 6 April 2012, or two years if you started on or after 6 April 2012 - unless the reason for your dismissal is one that is automatically unfair.

The length of time you have been working for your employer is calculated in months and years, starting from the day you began to work for your employer, and ending on the date your employment comes to an end. For unfair dismissal purposes, only employment from the date of your sixteenth birthday counts towards length of service.

The date your employment comes to an end is the last day you actually work (if either you or your employer gives the correct notice and you work out your notice), or the last day you actually work (if your employer has made a payment in lieu of notice which is correct), or where a fixed-term contract runs out and is not renewed, the date the contract runs out.

If you were dismissed without being given the notice you are legally entitled to, your length of service is calculated by adding on the legal notice you should have been given, when you are working out how long you have worked for your employer.

But when you are working out time limits for a tribunal claim, your employment is treated as ending on the day you were dismissed.

Compensation is normally made up of a basic award (compensating up to a maximum of 20 years' service), and a compensatory award to compensate for loss of earnings. This can include net pay, fringe benefits, overtime and bonuses. It can also include loss of pension rights and loss of statutory rights. The amount of any Jobseeker’s Allowance or Income Support the employee has received since the dismissal will be deducted from the award.

Unless you think that your employer may be prepared to negotiate, making a successful claim to an employment tribunal is probably the only way you can get your job back. However, very few tribunals order re-employment.

The ACAS Arbitration Scheme is designed for straightforward unfair dismissal cases. ACAS claims that their scheme is quicker and more informal than a tribunal hearing, but, in opting for the scheme, you waive your right to go to an employment tribunal. There is also no right of appeal.

Wrongful Dismissal

If your employer does not give you the rights you are entitled to under your contract of employment, e.g. your employer does not give you the correct notice of dismissal that you are entitled to under your contract, this is known as a breach of contract.

Your employer may pay you an amount of money as compensation instead of giving you notice of dismissal or allowing you to work out your notice. This is called pay in lieu of notice. If there is a term in your contract which allows your employer to pay you pay in lieu of notice instead of giving you notice, then provided you are paid the correct amount of pay in lieu, there will be no breach of contract.

If your employer does not give you the correct notice and does not pay you pay in lieu instead, or does not pay the right amount of pay in lieu of notice, you may be able to claim compensation for the breach of the contract by making a claim for wrongful dismissal. You can make a claim for breach of contract to the employment tribunal at the same time as making a claim for unfair dismissal. Compensation for breach of contract will be in addition to any compensation you can also claim for unfair dismissal. Your employer should follow a proper dismissal procedure before dismissing you. Otherwise, the dismissal may be automatically unfair.

You can claim compensation for breach of contract for other things, such as if your employer takes back your company car when it is a term of the contract that you have a company car for all the time that you are an employee (including your notice period).

Settlement agreements are contracts that waive an individual's rights to make a claim covered by the agreement to an employment tribunal or court.

The agreement must be in writing, will usually include some form of payment to the employee, and may often include a reference. They are voluntary and can be offered at any stage of an employment relationship.

Settlement agreements are legally binding contracts that can be used to end an employment relationship on agreed terms. They can also be used to resolve an ongoing workplace dispute, e.g. a dispute over holiday pay. These agreements can be proposed by either an employer or an employee, although it will normally be the employer.

Once a valid settlement agreement has been signed, the employee will be unable to make an employment tribunal claim about any type of claim that is listed in the agreement.

Where the employer and employee are unable to reach an agreement, the settlement discussions cannot usually be referred to as evidence in any subsequent unfair dismissal claim. Where the settlement discussions are held to resolve an existing dispute between the parties they cannot be used as evidence in any type of claim.

For the settlement agreement to be legally binding it must be in writing and relate to a particular complaint or proceedings, the employee must have received advice from a relevant independent adviser, such as a lawyer or a certified and authorised member of a trade union. The independent adviser must have a current contract of insurance or professional indemnity covering the risk of a claim by the employee in respect of loss arising from the advice. It must identify the adviser, and state that the applicable statutory conditions regulating the settlement agreement have been met.

Employees should be given a reasonable amount of time to consider the proposed conditions of the agreement; the ACAS Code of Practice on settlement agreements specifies a minimum of 10 calendar days unless the parties agree otherwise.

Settlement agreements are voluntary and parties do not have to agree to them or enter into discussion about them. There can be a process of negotiation, during which both sides make proposals and counter proposals until an agreement is reached or both parties decide no agreement can be reached.

If a settlement agreement is not reached and depending on the nature of the dispute or problem, resolution may be pursued through a performance management, disciplinary or grievance process, or mediation whichever is the most appropriate. It is important that employers follow a fair process and use the ACAS Code of Practice on Discipline and Grievance procedures because if the employee is dismissed, failure to do so may be grounds for a claim of unfair dismissal.

Although there is no statutory right for the employee to be accompanied at any meeting to discuss the agreement, an employee may want to involve someone to help them, such as a work colleague or a trade union representative. Employers should, as a matter of good practice, allow an employee to be accompanied when meetings are held as this can often help progress settlement discussions.

When the settlement agreement includes an agreement to end the employment relationship, then employment can end with the required notice, or the timing can be agreed as part of the settlement agreement.

Details of payment and the timing should be included in the agreement; any payments should be made as soon as practicable after the agreement has been reached.