Employment Law Solicitor

A constructive dismissal claim is similar to an Unfair Dismissal claim but rather than an employee being dismissed by their employer it is where the employee resigns because they’ve lost all trust and confidence in their employer.

Constructive dismissal occurs if you resign because your employer breaches the employment contract by taking action such as cutting your pay, changing your working conditions, letting other employees bully you or any other serious breach of your working conditions making it impossible for you to continue working.

In most cases you need to have had 2 years continuous service with the same employer however if you’ve been TUPE’d from one employer to another then the service with the previous employer counts towards the 2 years.

The 2 year role doesn’t apply in certain other cases the most notable being if you are discriminated against in your employment.

If you are successful the Employment Tribunal are able to award damages in respect of your losses in relation to your lossesof salary, an award based on your ager and length of service (Basic Award) and, where relevant, an award for Injury to Feelings.

Claims for Constructive Dismissal are very difficult to bring and it is very important that you get expert legal help at a very early stage.

If you feel that you can no longer work for your employer or you’ve already resigned please phone us for a no obligation consultation.

Although you may have been treated unfairly by an employer this is not always against the law. Understanding what counts as discrimination and being capable of bringing a claim in an Employment Tribunal can be complicated.

In order to bring a claim in respect of discrimination it must refer to your mistreatment

What Are The Protected Characteristics?

Protected characteristics are:

• Age
• Disability

A person has a disability if s/he has a physical or mental impairment which has a substantial and long-term adverse effect on that person’s ability to carry out normal day-to-day activities. It does not include, for example, a

• Gender reassignment

The process of transitioning from one gender to another.

• Marriage and civil partnership

In England and Wales marriage is no longer restricted to a union between a man and a woman but now includes a marriage between a same-sex couple.

Same-sex couples can also have their relationships legally recognised as ‘civil partnerships’. Civil partners must not be treated less favourably than married couples (except where permitted by the Equality Act).

• Pregnancy and maternity
• Race

Refers to the protected characteristic of Race. It refers to a group of people defined by their race, colour, and nationality (including citizenship) ethnic or national origins.

• Religion and belief

Religion has the meaning usually given to it but belief includes religious and philosophical beliefs including lack of belief (e.g. Atheism). Generally, a belief should affect your life choices or the way you live for it to be included in the definition.

• Sex
• Sexual orientation or perceived orientation

There is no minimum amount of service with an employer in order to bring a claim for discrimination indeed a claim can be brought even before employment has started.

There are 2 types of discrimination, direct and indirect.

Indirect Discrimination

Indirect discrimination is when there’s a practice, policy or rule which applies to everyone in the same way, but it has a worse effect on some people than others. The Equality Act says it puts you at a particular disadvantage.

Examples:

1. If an employer advertises a job where you need to be able to travel away at short notice it may be possible to show that this clause is likely to discriminate against women as there are more likely to be a greater number of women caring for children with children.
2. A company advertises for staff and states that men must not have beards. This could be seen as discriminating against Muslims as it may be possible to show that a greater number of Muslim men have beards than non-Muslims.
3. A company is making people redundant. As part of the criteria for deciding who is going to be made redundant the company use the amount of time that you’ve taken off sick. If you suffer from a disability, for example cancer that has meant you taking time off for treatment this could be seen as discrimination.

Direct Discrimination

Direct Discrimination occurs when someone is treated less favourably than another person because of a protected characteristic they have or are thought to have or because they associate with someone who has a protected characteristic.

Examples:

1. An employer advertises for male only security staff to work on a building site. This is almost certainly discrimination based on sex.
2. A white British employee working in a pub is instructed not to serve young black men. Although the discrimination is not against the employee she is still able to bring a claim for discrimination.
3. An employer refuses to allow an employee aged 62 to attend training courses whilst allowing younger employees to do so. This is a potential claim for age discrimination.

In all cases of discrimination there are no caps on the amount of damages that can be claimed.

If you think that you are being discriminated against at work please telephone one of our solicitors for free no obligation advice.

Settlement Agreements are what used to be called Compromise Agreements. They are drafted by an employer to settle actual or potential claims that an employee may have against them. Their most common use is when an employment relationship comes to an end but they can also be used to settle a complaint of a current employee.

Examples:

1. Abdul has raised a complaint that he has not been promoted because of his age. He has indicated that he may take his claim to an Employment Tribunal. His employer offers Abdul a Settlement Agreement that settles any potential or perceived claims that Abdul may have.
2. Helen and Jane both work in the accounts department of a large firm. They are both very good at their job but there is a personality clash between them. HR have tried to resolve the situation but without success. Helen approaches her employer in confidence and suggests that she is willing to leave if they can agree mutually agreeable terms. Her employer accepts the proposal and enters into a Settlement Agreement whereby she receives a financial payment along with an agreed reference for any future employer.
3. Mark’s employer is making people redundant and he has been chosen for redundancy. His employer offers him a Settlement Agreement to settle any potential claims that he may have. Mark receives financial compensation for losing his job and an agreed reference to use for any future employer.

The advantages for an employee in entering into a Settlement Agreement with an employer rather than taking a case to an Employment Tribunal are that it is quicker, your employer will pay some if not all the fees in relation to you taking legal advice, you can get an agreed reference, you know exactly how much compensation you will receive and when.

If you have been offered a Settlement Agreement or would like further advice as to how to approach your employer to enter in to one please phone us.

We are regularly able to negotiate more favorable terms for our clients than the original offer. We are also able to ensure that payment is made using the most tax efficient method available.

Work is where most of us spend a great deal of time and if the employment relationship breaks down, for whatever reason, it can cause a great deal of stress.

Here at Freeman Harris we have been advising client’s as to how best to deal with work related issues for many years in a friendly and approachable way.

Overview

Dismissal is when your employer ends your employment – they don’t always have to give you notice.

If you’re dismissed, your employer must show they’ve:

• a valid reason that they can justify
• acted reasonably in the circumstances

They must also:

• be consistent – e.g. not dismiss you for doing something that they let other employees do
• have investigated the situation fully before dismissing you – e.g. if a complaint was made about you
• If you’re a part-time or fixed-term worker, you can’t be treated less favourably than a full-time or permanent employee.

Notice Period

You must be given at least the notice stated in your contract or the statutory minimum notice period, whichever is longer.

There are some situations where you can be dismissed immediately – e.g. for violence.

In order to bring a claim for unfair dismissal you would normally need to have 2 years continuous employment although there are certain circumstances where this is not necessary.

Your dismissal could be unfair if your employer doesn’t:

• have a good reason for dismissing you
• In dismissing you your employer must follow proper procedures and the

dismissal must be fair in all the circumstances

Potentially fair reasons for dismissal include:

• lack of capability,
• misconduct,
• redundancy or
• some other substantial reason.

Even if it is established that the dismissal falls within one of these potentially fair reasons, the process of the dismissal must also be fair.

An assessment of the process must be made, typically situations when your dismissal is likely to be unfair include if you:

• asked for flexible working
• refused to give up your working time rights – eg to take rest breaks
• resigned and gave the correct notice period
• joined a trade union
• took part in legal industrial action that lasted 12 weeks or less
• needed time off for jury service
• applied for maternity, paternity and adoption leave
• were on any maternity, paternity and adoption leave you’re entitled to
• tried to enforce your right to receive Working Tax Credits
• exposed wrongdoing in the workplace (whistleblowing)
• were forced to retire (known as ‘compulsory retirement’)

Compulsory retirement is not allowed unless your employer can objectively justify it, but you can challenge it at an employment tribunal.

Getting Your Dismissal In Writing.

You have the right to ask for a written statement from your employer giving the reasons why you’ve been dismissed if you’re an employee and have completed 2 years’ service (1 year if you started before 6 April 2012).

Your employer must supply the statement within 14 days of you asking for it.

Your employer must give you a written statement if you’re dismissed while you are on Statutory Maternity Leave. You get this:

• even if you’ve not asked for one
• regardless of how long you’ve worked for your employer

What To Do If You’re Dismissed

The first step is, normally, to appeal to your employer following their Disciplinary procedure. If this does not resolve the issue you may have a claim in an Employment Tribunal.

Time Limits

You have 3 months from your last day of service to commence a claim. If your last day of service was, for example, 29thAugust you must start proceedings by no later than 28th November. If you are late it is very unlikely that your claim will be heard.

From 6th May 2014 before submitting an application to the Employment Tribunal you must make an application to ACAS for early conciliation.

Tribunal Fees

Fees are now payable for all applications to the Employment Tribunal however it is possible to apply for a fee remission. You may also be entitled to payment of your fees from a ‘Legal Expenses Insurance’ policy.

Victimisation occurs when an employee is treated badly or subjects you to a detriment because they have made or supported a complaint or raised a grievance under the Equality Act; or because they are suspected of doing so. This is called a ‘Protected Act’.

What’s Meant By Detriment?

Detriment means you’ve suffered a disadvantage of some sort or been put in a worse position than you were before for doing a ‘Protected Act’.

What Complaints Are Covered?

Any complaint regarding a ‘Protected Characteristic’ which are:

• age
• disability
• gender reassignment
• marriage or civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation

Examples:

1. You raise a grievance of sex discrimination against your employer. As a result, you’re denied a promotion. This is victimisation and you can take action against your employer under the Equality Act. You’ve suffered a detriment as you didn’t get promoted.
2. A fellow employee asks you to give evidence in his grievance hearing regarding the way that he has been treated by his line manager because of his religious beliefs. Following the hearing you are demoted because of the help that you provided.

What About Other Non ‘Protected Characteristic Complaints?

Complaining, insisting on legal rights at work or doing anything that is legal and justified within the law that is followed by unfair treatment can be victimisation.

Example:

1. You complain that you are being made to work on unsafe equipment. You are told that if you don’t work on it you will not get overtime.

It is important that any complaint is made in good faith otherwise the complaint will not be capable of amounting to victimisation.

Does It Matter How Long After The ‘Protected Act’ That The Victimisation Takes Place?

No. If it can be shown that the act complained of is the reason for the victimisation then there is no time limit.

Example:

1. An employee gives evidence in a colleagues race discrimination claim. 2 years later she leaves and asks for a reference. The old employer’s reference states that . This amounts to victimisation.

If you believe that you are being victimised please call for a free no obligation consultation.