YOUR RIGHTS AT WORK A GUIDE

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1 A GUIDE Bloomsbury Law Solicitors

2 Important information: All advice and explanation of the law in this document is intended for information purposes only, and is not a substitute for taking formal specific legal advice from a practising solicitor or barrister. While every care has been taken to ensure the accuracy of the contents of this document and the opinions in it, no responsibility for loss occasioned to any person or company acting or refraining from action as a result of any statement in it or otherwise caused by relying upon the contents of this document is accepted by the author or publishers. This document may not be reproduced or copied in any form without the express written consent of the publishers. Martin Phillips 2014 Contents Introduction... 4 Types of working relationships... 5 Self-employed... 5 Employed:... 5 Self-employed:... 5 Contractors to your own limited company... 6 Contractors to umbrella companies... 6 Agency workers... 6 Workers... 6 What is employment?... 6 The contract of employment... 7 Does a contract have to be made in writing?... 7 The statutory statement of terms and conditions... 7 Changes to the terms of employment... 8 Termination of employment... 9 Notice periods... 9 Wrongful dismissal Gross Misconduct Unfair dismissal Remedies for an unfair dismissal Constructive dismissal The right to be accompanied To whom does the right apply?

3 Application of the statutory right What is a disciplinary hearing? What is a grievance hearing? What is a reasonable request? The accompanying person What can a companion at a hearing do? Employment Tribunals DISCRIMINATION Protected characteristics Age Disability Race Sex Sexual orientation Gender reassignment Marriage and civil partnership Pregnancy and maternity Religion or belief Prohibited Conduct Direct discrimination Associative discrimination Perceptive discrimination Indirect discrimination Discrimination arising from disability Harassment Victimisation Failure to make adjustments for disabled people What is a disability? People with HIV infection, cancer and Multiple Sclerosis People deemed to be disabled

4 Exclusions from the definition A summary of an employee s statutory rights Written statement of employment terms and conditions Itemised pay statement Notice of termination Written reasons for dismissal Time off for public duties Unfair dismissal Statutory sick pay Maternity rights Paternity rights Transfer of a business or undertakings (TUPE) Shop working on Sundays Redundancy pay Discrimination Disability Working hours and annual leave The National Minimum Wage Guarantee payments Parental leave and time off for dependants Flexible working Right to be accompanied at certain hearings Right to request time off from work to undertake study or training Whistle-blowers Data protection Health & Safety Statutory rights Introduction This is a brief summary of some of the basic rights that the law gives to people at work in the UK. As such, while the law is stated as accurately as possible, this is only an introductory summary and is 4

5 not published as formal legal advice or to be relied upon in taking any kind of action. It is simply intended to give the reader a basic idea of what their rights could be. If you have problems at work or believe that your rights have been infringed than you may need the services of a Solicitor. The author of this guide, Martin Phillips is a solicitor with over 30 years experience and can be contacted for an appointment at BloomsburyLaw Solicitors at 17 Manchester Street London W1U 4 DJ telephone or him on [email protected]. You can obtain an opinion from Martin or one of his team about whether or not you may have a case worth making an appointment to discuss with one of our team of solicitors. See Types of working relationships People can work in relationships that give rise to different types of legal rights. The most common types of working situation are set out below. Self-employed You work for yourself in your own business and submit your personal accounts to the taxman. Usually you will advertise and carry out work for many different clients who engage your services but do not control how you carry out your work. In determining whether a person is self-employed the Inland Revenue suggest the following indicators: Employed: If you answer yes to the following you are usually employed: Do you have to do the work yourself? Can someone tell you what to do and when or how to do it? Are you paid by the hour, week or month? Do you get overtime pay? Do you work set hours? Do you work at someone else s premises or where he or she decides you should work? Self-employed: If you answer yes to the following you are usually self-employed: Do you have the final say in how the business is run? Do you risk your own money in the business? Are you responsible for meeting losses as well as taking profits? Do you provide the main equipment for doing your job? Can you hire other people to do work you have taken on? Do you have to correct work that is unsatisfactory in your own time and at your expense? 5

6 Contractors to your own limited company Some people work on contracts to supply their services via a limited company. This can have benefits in terms of tax and payment terms although the taxman has tried to shut the door by a rule called IR35 which says that if other than for the existence of your limited company you would be employed by the business the work is done for you will be taxed as an employee. Contractors to umbrella companies In a similar way some people supply their labour via agencies and their pay is channelled through a business called an umbrella company that deducts their tax and NI and pays them. This has tax advantages in that some agencies pay a higher rate to contractors and using an umbrella company can give tax advantages in terms of reclaiming expenses against tax. Some umbrella companies purport to enter into self-employed contracts with their clients. Agency workers People who supply their labour through an employment agency (either as a temp or on contract) are usually not employed by the business where they work. The agency is paid by their client and it pays the agency worker (and deducts their tax and NI) or pays the gross pay to their umbrella company which calculates their tax. However because the agency cannot control the work in the place that the worker does it usually it is not capable of being treated in law as the employer. The business where the person does the work does not employ them because its only contract is with the agency. For this reason most agency workers are not technically employed by anyone but agencies still have to deal with your tax and NI by PAYE for anyone where it pays them unless they contract with the agency with an umbrella company or are registered as self-employed. Workers By law a worker is defined as anyone who personally undertakes to do work for another under a contract, whether written, oral, implied, or express, but not where the work is part of a profession or business undertaking carried on by the worker. What is employment? Most people who go to work are employed by someone else. The essential characteristics of employment are that there is: A contract of service. The nature of such a contract is that the employer controls the employee. Usually the employer will control how, when and where the work is done. In a typical employment this means that the work is done on the employer s premises using the employer s tools and materials. There must be a mutual obligation between employer and employee (for example: the employee is obliged to do the work he is provided with; and the employer is obliged to pay him for it). The obligation is a personal one and the employee is personally obliged to do the work himself as opposed to getting someone else to do it. If the person who is agreeing to do 6

7 work has the right to send someone else to do the work they are not employed to do the work under a contract of employment. Both parties have the intention to create a legally binding employment relationship. The contract of employment Everyone who is an employee works under the terms of a contract of employment. It may be a formal written document, or it may be simply a spoken oral agreement; a contract can also be implied from the existence of certain facts. Where there is a contract of employment the law implies basic terms into it: An employee has a duty: To act in the employers best interests; Not to compete with the employer s business while employed; Not to use trade secrets /confidential information; To carry out lawful instructions with due care and honesty. An employer has a duty: To maintain a relationship of trust and confidence with his employees; To take reasonable care for an employee s health and safety; To provide an employee with reasonable and prompt means to redress any grievance he or she may have; To provide employees with a working environment suitable for the performance of their contractual duties. Does a contract have to be made in writing? The actual agreement that forms the contract does not have to be made in writing. The statutory statement of terms and conditions However, what is required by Section 1 Employment Rights Act 1996 is that a summary of the most important terms be given to the employee within two months of the contract commencing (unless the contract did not last for a month or the employee is excluded from Section 1, mainly seamen and employees who work outside Great Britain). The written summary, which the law does require, MUST include terms covering the matters below: The identity of the employee; The title of the employee s job and brief description of his or her work; The place where the employee is to work; The date the employment began; The dates any continuous employment began; The rate of pay and intervals when payment takes place; 7

8 The hours of work; Entitlement to holidays including public holidays and holiday pay; What happens if the employee is sick or injured or otherwise incapable of work and whether he will receive sick pay and if so on what terms; Details of the Pension Scheme and whether or not there is in force a contracting out certificate for the employment; Notice to be given and received; If employment is temporary, the expected period of employment; The termination date if employment is for a fixed term; Any collective agreements applicable to the employment; Whether the employee is expected to work outside the UK for more than 1 month and if so length of period, currency of pay, benefits and terms relating to return to UK; Specify any procedure applicable to the taking of disciplinary decisions relating to the employee or to a decision to dismiss the employee or referring the employee to the provisions of a document specifying such a procedure which is reasonably accessible to the employee; Specify a person (either the name of the person or their job title/position) to whom the employee can apply if unhappy with any disciplinary action or dismissal decision taken against him or her; Specify a person (either the name of the person or their job title/position) to whom the employee can apply to seek redress of any grievance relating to his employment. The statement must accurately represent the terms as they were seven days prior to the date of the statement. A written contract of employment should state that it complies with the legal obligation to issue a summary to the employee as well as clearly defining all the terms of the relationship. A contract is a two-way transaction. Both parties to the transaction have to agree. If they fail to agree about a particular aspect of their relationship at the outset any later disagreement can only be resolved in a way that is agreed by both the employer and employee and effectively amends their original agreement (or effectively a failure to agree means that their contract may be terminated). For example if an employer takes on an employee but there is no defined basis upon which the employee is to take his holidays the employer is not in a position to dictate what should happen and will have to negotiate and agree a solution with the employee. In some cases disputes can lead to the matter being heard by a court or Employment Tribunal who will usually imply terms or interpret what has happened in the past to determine the matter in favour of the employee. An employee who is not issued with a written statement of terms and conditions can apply to an Employment Tribunal and get an order that the employer provide the missing details and the Tribunal must also award compensation of between two and four week s pay to the employee. Changes to the terms of employment Any change to the terms upon which a person is employed must be given to him or her in a written statement at the earliest opportunity or in any event within one month of the change. 8

9 However a contract of employment is an agreement so neither party has the right to change the terms of the contract without the agreement of the other. Thus if an employer makes a substantial change to the terms of the contract of employment without the agreement of the employee what is the effect of the change? 1. If the employee does not agree to the change and chooses to treat the existing agreement as brought to an end by the change there has been a dismissal that may give the employee a remedy for unfair dismissal, wrongful dismissal or breach of contract. This may be a constructive dismissal where the employee chooses to resign because of his employer s fundamental breach of contract or it may be an express dismissal if the employer terminates the old contract and issues a new one (effectively re-employing the employee on the new terms). 2. If the employee accepts the change whether he would have agreed to it or not and elects to continue working he may be deemed to have accepted the change and agreed to the new term. Some unilateral changes to a contract may not be sufficient to amount to a dismissal where they do not substantially change the terms upon which the employee is employed. For example a change in the identity of the employer due to the renaming of the company or change of ownership, change of address or a change in the documentary format of the contract. Many contracts of employment give an employer the express right to change the contract without the further agreement of the employee. Such clauses will be effective only to the extent that an employer cannot make substantial changes to contracts that are to the detriment of the employee. Such action would be a breach of the implied term of mutual good faith and trust and would entitle the employee to treat the contract as brought to an end by the employer s breach of contract. Termination of employment Unless an employee is contracted to work for only a specific fixed period of time or his contract provides other circumstances that automatically end it, his employment can usually only be terminated by either party giving a period of notice. Notice periods The contract can set out how much notice either party needs to give but the employer must give the employee at least the statutory minimum period of notice which is one week, until there have been two completed years of continuous employment, after which it is one week for every completed year of employment up to a maximum of 12 weeks notice. This rule applies to employees who have been employed for more than a month. An employee only has to give a week s notice, after a month of employment, irrespective of how long he has been employed unless there is an express contractual term that he gives a different notice period. There is an implied term that both employer and employee must give each other reasonable notice and the circumstances of a particular business may require greater notice than the statutory minimum. If the contract expressly provides for a notice period that is not less than the statutory minimum then it will be binding. 9

10 Wrongful dismissal An employer who dismisses someone without contractual or statutory notice will be in breach of contract and liable to pay compensation. This is called wrongful dismissal and usually the employer s liability will be limited to payment of salary in lieu of the notice that should have been given to the employee. The issue is simply whether notice was given and has nothing to do with the fairness of the decision to dismiss. Only in extreme cases does the law permit summary dismissal without notice. Usually there must be gross misconduct on the part of the employee. Gross Misconduct Gross Misconduct is not specifically defined but the courts have established categories of offence that are potentially so serious as to justify summary dismissal without notice. What is required is behaviour that is such as to show the servant to have disregarded the essential conditions of the contract of service. Examples of Gross Misconduct: Theft or other deliberate dishonesty. Even if the amount involved is small, deliberate theft or dishonesty will usually justify summary dismissal. Violence towards fellow employees or management will usually amount to gross misconduct and lead to dismissal but a careful investigation is essential. Deliberate damage to employers property will, like dishonesty, justify summary dismissal. Drinking alcohol and drunkenness at work could also amount to gross misconduct although again the circumstances should be carefully considered. For example if the employer does not have a rule against such conduct or the drinking occurs at a work-related social function or a business lunch then clearly that context would suggest that a finding of gross misconduct is not justified. Where a worker drives for a living or operates machinery then health and safety standards would ensure that a strict rule against such conduct was applied. Insubordination and offensive language will in a serious case amount to gross misconduct. However employers should remember that certain words when set out in a statement or read in court room may sound appalling and inappropriate, but the nature of the work place and the type of language commonly used, for example, in a male-dominated shop floor situation, may be very different to the mode of language used in an office. Robust language and macho behaviour, when taken in context, may not amount to gross misconduct. It is important to distinguish between incidents of robust male banter that gets a little out of hand and a serious incident of insubordination. Unauthorised use of a computer or tampering with a computer without authority has been held to be gross misconduct justifying summary dismissal. Accessing pornography while at work has been held to be conduct that a reasonable employer may find to be gross misconduct justifying instant dismissal. 10

11 A serious breach of trust and loyalty could be gross misconduct. For example an employee who sets up a business in competition to his employer, approaching clients and seeking to undercut his employer s prices as well as encouraging other staff to leave was fairly dismissed for gross misconduct but an employee who was merely taking steps to prepare to set up his own competing business (with a view to competing only after he had left his employment) was unfairly dismissed. Working for and assisting a competitor was gross misconduct but merely seeking employment with a competitor was not. Gross negligence and incompetence may amount to gross misconduct and justify summary dismissal. Some employers fall in to the trap of treating poor performance or capability in the same way as misconduct and this can lead to unfair dismissals. What could however amount to gross misconduct is an act of gross negligence or incompetence that is so serious that there is no question of the employee being warned or given the chance to improve. Unfair dismissal The law protects UK employees from unfair dismissal. This is entirely separate from wrongful dismissal. It is a basic right given to employees by the law since Employers cannot dismiss any employee who is protected from unfair dismissal unless they have a potentially fair reason for the dismissal and they make a decision which is fair in all the circumstances. There are some reasons for dismissal that are automatically unfair in all cases however long the employee has worked for their employer. In most cases an employee must work for an employer for two years before they become protected from unfair dismissal 1. An employee who believes that he has been unfairly dismissed can bring a claim before an Employment Tribunal (see section on Employment Tribunals below). There is no qualifying period for protection from unfair dismissal in the following cases: 1. Dismissal for a certain trade union related reason; 2. Dismissal for asserting a statutory right (e.g. objection to illegal deduction from wages or insisting on any of his statutory rights under the Employment Rights Act 1996); 3. Dismissal for a health and safety related reason (e.g. refusing to operate dangerous machinery); 4. Dismissal for a maternity related reason (e.g. sacked when she tells employer she is pregnant); 5. Dismissal in connection with function as a pension scheme trustee; 6. Dismissal in connection with performing a function as an employee representative or a special negotiating body or European Works Council etc; 7. Dismissal in connection with refusal of Sunday work by a shop worker; 8. Dismissal in connection with working time (e.g. someone who asks to be allowed to take annual leave or breaks or refuses to opt out of the 48 hour week); 9. Dismissal in connection with assertion of right to the National Minimum Wage; 10. Dismissal in connection with making a protected disclosure (whistle blowing); 11. Dismissal in connection with trade union recognition or bargaining arrangements; 1 (or for 12 months, if their period of continuous employment began before April 5th 2012) 11

12 12. Dismissal in connection with exercising the right to be accompanied to a disciplinary or grievance hearing; 13. Dismissal in connection with taking part in protected industrial action (official strikes for example); 14. Dismissal because of taking time off for dependants or paternity or parental leave; 15. Dismissal because of action related to part time worker s rights; 16. Dismissal in connection with someone s rights as a fixed term employee; 17. Selection for dismissal by way of redundancy because of an automatically unfair reason; 18. Dismissal in connection with Tax Credits or a claim for the same; 19. Dismissal for being absent on jury service or because the employee has been summoned for jury service. 20. Dismissal for asserting a right to flexible working. 21. Dismissal for asserting a right to study and training. 22. Dismissal because of a TUPE transfer or a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes in the workforce. 23. Dismissal because of a spent conviction. 24. Dismissal for exercising rights under the Agency Workers Regulations All of the above are automatically unfair dismissals. In most of these cases an employee does not need to have a period of qualifying continuous employment EXCEPT in the following: Dismissal in connection with a TUPE transfer; Dismissal because of a spent conviction; Dismissal in connection with an application for flexible working. (but they will give rise to an automatic finding of unfair dismissal if they are shown to be the reason for dismissal of someone qualified to claim). The effect of a reason being an automatic unfair dismissal is that if the employee establishes to the Tribunal that he was dismissed for such a reason the employer cannot then establish that the dismissal was fair. Dismissal in discrimination cases. Dismissal for a reason that amounts to sex or race or disability discrimination or in connection with a complaint of such discrimination will almost certainly be unfair in every case and where the employee is qualified to claim unfair dismissal he will succeed under both the head of discrimination and unfair dismissal. However, if the employee has not qualified for protection from unfair dismissal he will still be able to make a Tribunal claim that his dismissal itself was an act of discrimination and seek compensation as in an unfair dismissal but compensation will be unlimited and can include injury for feelings. Other dismissals. For the employer to be able to prove that it was fair the reason for a dismissal that is not automatically unfair, must be one of the potentially fair reasons, which are: 12

13 Related to the capability or qualifications of the employee; Related to the conduct of the employee; Redundancy; Where continued employment would involve the employee or the employer contravening a duty or restriction imposed by law; Some other substantial reason. Once it is established that the reason the dismissal was a potentially fair one, the employer s decision to dismiss must satisfy a test of fairness. If the employer has not followed a fair procedure the decision to dismiss will be unfair even if there is otherwise a good reason for the dismissal and the employer s error is purely procedural. Assuming that the employer has carried out an investigation, consulted where necessary and held a fair hearing where necessary, it is then for the Tribunal to address the issue of whether the employer was reasonable to respond to the situation by dismissing the employee. The job of a Tribunal is not to substitute its own view for that of the employer but to decide whether the employer s response was a reasonable one, judging it by an objective standard of fairness. However a Tribunal is obliged to take into account whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and it is the law that the issue be determined in accordance with equity and the substantial merits of the case. The essence of unfair dismissal is that the employer must prove that: The principle reason for the dismissal was potentially fair; They genuinely believed that they had a good and fair reason for dismissal; They reasonably followed a fair procedure; That their decision to dismiss was a reasonable response in all the circumstances. Factors which affect the reasonableness of an employers action include: The length of time during which the employee has been employed by them; The satisfactoriness or otherwise of the employee s service; The difficulties which may face the employee in obtaining other employment; Treatment of other employees in similar circumstances; The investigation carried out; The hearing in a disciplinary matter; The size of the employer s undertaking. The Tribunal must always take into account the ACAS Code of Practice on Disciplinary and Grievance Procedures. Any employer or employee who unreasonably fails to follow the Code of Practice risks a Tribunal award of compensation that is subsequently made being increased or reduced by up to 25% and failure to follow it makes it very likely that a dismissal will be ruled to be unfair where if the employer had followed a fair procedure a dismissal for the same reason might have been found to be fair. 13

14 The ACAS Code of Practice does NOT apply to redundancy dismissals or failure to renew a fixed term contract. However the Tribunals will still be able to rule on the fairness of such dismissals as they have in the past. Remedies for an unfair dismissal Compensation consists of a basic award, which is related to statutory redundancy payments, plus a compensatory award. The maximum amount for compensatory awards is index linked but in unfair dismissal cases the employee will usually not be able to recover more than one year s pay. But there is no limit to the compensatory award where: The employer refuses to reinstate or re-engage the employee; Where the dismissal is for trade union or health and safety reasons; Where the dismissal is for protected disclosure reasons or; Where the dismissal is redundancy and the selection is made on health and safety or protected disclosure grounds; In discrimination cases. An Employment Tribunal that has made a finding of unfair dismissal also has a duty to consider whether to make an order that the employer re-engage or reinstate the employee. The compensatory award is made to compensate an unfairly dismissed employee for loss sustained in consequence of the dismissal so far as that loss is attributable to action taken by the employer. The amount is such amount as the Tribunal considers just and equitable in all the circumstances and includes any expenses reasonably incurred by the complainant and loss of any benefit that he might reasonably have expected to have had but for the dismissal. A complainant must mitigate his loss in the same way as the common law expects any claimant to do. He cannot simply wait for the Tribunal hearing and make no effort to get work although it has to be remembered that dismissed employees particularly those with long service often have no references from the employer who dismissed them and thus can justify their failure to secure employment. The award of compensation can be reduced by such amount as the Tribunal finds just and equitable where it is found that the complainant s conduct to any extent caused or contributed to the dismissal. However compensation for unfair dismissal is limited to financial losses only and, unlike in discrimination cases, no award can be made to compensate for injured feelings or distress caused by the manner of dismissal. The question of what has to be deducted from an award of compensation is a vexed one. The Employment Appeal Tribunal recently ruled that Incapacity Benefit must be deducted. Yet another decision by the EAT held that earnings during a notice period for which the employee had been paid by his employer by a payment in lieu of notice did not have to be taken into account. Payments by an employer contractually or ex-gratia will be deducted. 14

15 Where an employee is unable to work after dismissal he may be awarded compensation for that period when the Tribunal finds that the cause of his incapacity is his dismissal, e.g. where the employee is psychologically affected by being dismissed. Just because someone is unable to work when dismissed does not mean they cannot recover future earnings based on an assessment of when they are likely to be fit to work and their prospects of getting another job and what they are likely to earn. Tribunal awards are subject to direct recoupment of certain state benefits. Constructive dismissal If an employee resigns (without notice) in circumstances where he is entitled to treat the contract as brought to an end by a fundamental breach of contract on the part of the employer there will be a dismissal (and it will almost certainly be unfair). An example of this kind of constructive dismissal is where the trust and confidence between employer and employee is destroyed. Abusive or discriminatory behaviour by an employer towards an employee, a serious unilateral variation of contractual terms by the employer or conduct intended to provoke the employee s resignation may well cause a constructive dismissal. As a rule for there to be a successful claim of constructive dismissal the employee must inform the employer that the real reason for his resignation is the fact that he regards the employer to have repudiated the contract by what he has done or threatened to do. Usually the reason should be stated at the time of the resignation but this is not essential. The employee must establish that the employer was in breach of an express or implied term of the contract, that the breach was fundamental to the contract and that he resigned because of it. An employee who remains in his job after the alleged breach of contract may be said to have affirmed the breach and lose the right to treat the contract as brought to an end by the employer. A short while spent trying to decide what to do and or looking for another job may be allowed. As a rule any delay between the breach and resignation of more than a month will mean the employee has lost the right to resign. Examples of constructive dismissal are employees who have resigned because of their employer s use of bad language or threatening behaviour. In another case an employee who was on maternity leave discovered that her old job would be fundamentally changed when she went back so she resigned rather than go back and was found to have been constructively dismissed. An employer who threatened to give notice of dismissal to an employee unless he accepted changes in his contract terms was found to have constructively dismissed him. An employee who joined a van hire company as a receptionist resigned after three days because she was offended by her employers unlawful instructions to refuse to hire vehicles to black people. She was found to have been constructively dismissed. However in one case an employee who resigned after his boss allegedly promised him a substantial salary increase at the company Christmas party and failed to deliver on his promise was NOT constructively dismissed. The court said that what the boss was alleged to have promised was just a gratuitous promise that was not intended to be legally binding so there was no breach of contract. 15

16 Whether there is a constructive dismissal or not will depend on the employee showing that the conduct of or on behalf of the employer broke a fundamental term of the contract so as to show that the employer was no longer bound by the contract. This is an objective test. The implied term of trust and confidence was established by the decision in the 1997 case of Malik v BCCI. This held that...the employer shall not without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee...". It has since been suggested that this means a manner calculated and/or likely to destroy or seriously damage. While the breach of the implied term is something to be judged objectively it has been suggested that to amount to conduct that is a breach the conduct of the employer will be outside the range of reasonable responses. However genuinely held, the employee s belief that his trust in his employer has been destroyed only if the employer s actions amount to something outside the range of reasonable responses which judged objectively are calculated or likely to destroy that trust will there be a breach of contract entitling the employee to resign. If there is a constructive dismissal it will usually be a wrongful dismissal because necessarily the employee does not give notice. In almost all cases, if the employee can establish a repudiatory breach by his employer then the dismissal will be unfair and wrongful. The right to be accompanied Workers have a statutory right to be accompanied by a fellow worker or trade union official where they are required or invited by their employer to attend certain disciplinary or grievance hearings and when they make a reasonable request to be so accompanied. The request to be accompanied need not be in writing. To whom does the right apply? The statutory right to be accompanied applies to all workers, not just employees working under a contract of employment. Worker is defined and includes anyone who performs work personally for someone else, but is not genuinely self-employed, as well as agency workers and home workers, workers in Parliament and Crown employees other than members of the armed forces. Application of the statutory right The statutory right applies where a worker:- a) is required or invited to attend a disciplinary or grievance hearing, and b) reasonably requests to be accompanied at the hearing. What is a disciplinary hearing? Whether a worker has a statutory right to be accompanied at a disciplinary hearing will depend on the nature of the hearing. Employers often choose to deal with disciplinary problems in the first instance by means of an informal interview. So long as the informal interview does not result in a formal warning or some other action it is not essential for the worker to be accompanied at this informal stage. 16

17 But employers should be careful not allow an investigation into the facts surrounding a disciplinary case to extend into a disciplinary hearing. If it becomes clear during the course of the informal or investigative interview that formal disciplinary action may be needed then the interview should be terminated and a formal hearing convened at which the worker should be afforded the statutory right to be accompanied. The statutory right to be accompanied applies specifically to hearings that could result in: 1) the administration of a formal warning to a worker by his employer (i.e., a warning, whether about conduct or capability, that will be placed on the worker s record); 2) the taking of some other action in respect of a worker by his employer (e.g., suspension without pay, demotion or dismissal); or 3) the confirmation of a warning issued or some other action taken. What is a grievance hearing? The statutory right to accompaniment applies only to grievance hearings that concern the performance of a duty by an employer in relation to a worker. This means a legal duty arising from statute or common law (e.g., contractual commitments). Ultimately, only the courts can decide what sort of grievances fall within the statutory definition but the individual circumstances of each case will always be relevant. For instance:- 1) An individual s request for a pay rise is unlikely to fall within the definition unless specifically provided for in the contract. On the other hand a grievance about equal pay would be included as this is covered by a statutory duty imposed on employers. 2) Grievances about the application of a grading or promotion exercise are likely to be included if they arise out of the contract but not grievances arising out of requests for new terms and conditions of employment, for instance a request for subsidised health care or travel loans where these are not already provided for in the contract. 3) Equally an employer may be under no duty to provide car parking facilities and thus a grievance on the issue would not attract the right to be accompanied. However, if the worker was disabled and needed parking facilities in order to attend work the employer s duty of care becomes relevant and the worker is likely to have a statutory right to be accompanied. 4) Grievance arising out of day to day friction between fellow workers may not involve the breach of a legal duty unless the friction develops into incidents of bullying or harassment which would be included as they arise out of the employer s duty of care. What is a reasonable request? In order for workers to exercise their statutory right to be accompanied they must make a reasonable request to their employer to exercise that right. Workers are therefore free to choose any one who is within the qualified group of a fellow worker or trade union official. The choice of person to accompany them is not thought to be subject to a test of reasonableness only the request itself. So, an employer who refused an employee s request to be accompanied by a named union official with whom they had a previous disagreement was held to be acting unlawfully even though 17

18 they had permitted a different union official to do so at the hearing. The employee won a claim that the employer had failed to allow him his right to be accompanied. The accompanying person A worker has a statutory right to be accompanied at a disciplinary or grievance hearing by a single companion who is either: a) a fellow worker, i.e., another of the employer s workers; or b) a full-time official employed by a trade union or a lay trade union official, so long as they have been reasonably certified in writing by their union as having experience of, or as having received training in, acting as a worker s companion at disciplinary or grievance hearings. Such certification may take the form of a card or letter. Workers may, however, have been given contractual rights to be accompanied by persons other than those listed above, for instance a partner, spouse or legal representative. Otherwise an employer does not have to allow a request to be accompanied by such a person but can choose to do so only if they wish. Workers are free to choose an official from any trade union to accompany them at a disciplinary or grievance hearing regardless of whether the union is recognised by the employer or not. However where a trade union is recognised in a workplace it is good practice for an official from that particular union to accompany the worker at a hearing. There is no duty on a fellow worker or trade union official to accept a request to accompany a worker and no pressure should be brought to bear on a person if they do not wish to act as a companion. A worker who has been requested to accompany a colleague employed by the same employer and has agreed to do so is entitled to take a reasonable amount of paid time off to fulfil this responsibility. The time off should not only cover the hearing but should also allow a reasonable amount of time off for the accompanying person to familiarise themselves with the case and confer with the worker before and after the hearing. A lay trade union official is permitted to take a reasonable amount of paid time off to accompany a worker at a hearing so long as the worker is employed by the same employer. What can a companion at a hearing do? The law now states that an employer must permit the companion to address the hearing in order to put the worker s case, sum up that case, and respond on the worker s behalf to any view expressed at the hearing. The worker and companion must be allowed to confer during the hearing. However the companion is still not allowed to answer questions on the worker s behalf. If the worker indicates that he does not want the companion to address the hearing the employer is not obliged to permit him to do so. Furthermore the companion must not use the powers conferred upon him in a way that prevents the employer from explaining his case or prevents any other person at the hearing from making his contribution to it. 18

19 It is now clear that a union representative can act as an advocate on the worker s behalf at a disciplinary hearing in much the same way as an advocate in a court hearing. Employment Tribunals Employment Tribunals (which were originally known as Industrial Tribunals) are a system of courts that have authority to deal with a number of different types of claims and disputes on matters arising between an employer and his workforce. They are part of the court system like the County Court, Magistrates Courts, High Court and Crown Courts that hear civil and criminal cases. Tribunals are a different tier of the judicial system and are operated as a part of the Ministry of Justice by HM Courts & Tribunals Service. Most claims have to be brought within three months of the conduct complained of or in unfair dismissals the effective date of termination of his contract or the last day of working. A claim for a redundancy payment must be brought within six months of the relevant date. Claims presented out of time may still proceed if the applicant can persuade the Tribunal to extend the time for presentation. The applicant must satisfy the Tribunal that it was not reasonably practicable to present the complaint within the initial time prescribed and that it was reasonable to do so in the time within which the complaint was actually presented. This clause applies to unfair dismissal claims. In sex and race discrimination claims the Tribunal has the power to allow a claim which is out of time where it considers that it is just and equitable to do so. A claim has to be made in writing. Claims must be submitted using the prescribed ET1 form. The ET1 form MUST BE USED. It is obtained from the offices of the Tribunal service or can be downloaded from their website ( and printed and sent by post or it can be submitted online (see: In England and Wales claims should be sent to the Employment Tribunal Central Office (England and Wales) PO Box Leicester LE1 8EG In Scotland all claims should be sent to the Fees. Employment Tribunals Central Office (Scotland) PO Box Glasgow G2 9J It is now a requirement that before a claim can be accepted a fee must be paid. You can pay by debit or credit card if you apply online. You can pay by cheque or postal order (made out to HM Courts and Tribunals Service ) if you send your claim by post. Type of claim Application fee Hearing fee 19

20 Unpaid wages Redundancy pay Breach of contract Unfair dismissal Equal pay Discrimination Whistleblowing The fee you have to pay will be for the highest level of claim you are making where for example you make an equal pay claim and a discrimination claim in the same form the fee is 250. However someone on benefits or a low income can apply for remission from the fees. If you win your case usually the Tribunal will make an order that the fee will be paid back to you by the other party. ACAS The Advisory, Conciliation and Arbitration Service ( ACAS ) is a Government body established under the Employment Protection Act 1975 to promote the improvement of industrial relations in particular by the settlement of trade disputes. In relation to most matters that can come before Employment Tribunals ACAS may conciliate. In all claims presented since 6 th May 2014 all claimants must have provided certain information to ACAS and a certificate must be issued to them as to whether or not settlement is possible before the claimant s case can presented to a Tribunal. The limitation period which applies to Employment Tribunal claims is extended by up to one calendar month (with one extension allowed of up to 14 days if the conciliation officer considers that there is a reasonable prospect of achieving a settlement before the expiry of the extended period and has the consent of both parties) to allow for the early conciliation process to take place. What happens after the claim is presented? The Tribunal send a copy of an accepted claim to the other party named in the claim who then has to file a response to the claim. When received a copy is sent out to the claimant. As soon as possible after the acceptance of the response, the Employment Judge shall consider all of the documents held by the Tribunal in relation to the claim, to confirm whether there are arguable complaints and defences within the jurisdiction of the Tribunal (and for that purpose the Judge may order a party to provide further information). The Judge conducting the initial consideration shall make a case management order (unless made already), which may deal with the listing of a preliminary or final hearing, and may propose judicial mediation or other forms of dispute resolution. 20

21 Employment Tribunal Hearings There are two types of Tribunal hearing: 1. Preliminary Hearing. 2. Final Hearing. A Preliminary Hearing A Preliminary Hearing is a hearing at which the Tribunal may do one or more of the following (a) conduct a preliminary consideration of the claim with the parties and make a case management order (including an order relating to the conduct of the final hearing); (b) determine any preliminary issue; (c) consider whether a claim or response, or any part, should be struck out under rule 37; (d) make a deposit order under rule 39; (e) explore the possibility of settlement or alternative dispute resolution (including judicial mediation). There may be more than one preliminary hearing in any case. Preliminary issue means, as regards any complaint, any substantive issue which may determine liability (for example, an issue as to jurisdiction or as to whether an employee was dismissed). A Final Hearing A final hearing is a hearing at which the Tribunal determines the claim or such parts as remain outstanding following the initial consideration (under rule 26) or any preliminary hearing. There may be different final hearings for different issues (for example, liability, remedy or costs). Interim issues and Tribunal orders The Tribunal may at any stage of the proceedings, on its own initiative or on application, make a case management order. Similarly either party can apply to the Tribunal for orders to be made. The Tribunal may order (1) any person in Great Britain to disclose documents or information to a party (by providing copies or otherwise) or to allow a party to inspect such material as might be ordered by a county court or, in Scotland, by a sheriff. (2) any person in Great Britain to attend a hearing to give evidence, produce documents, or produce information. (3) add any person as a party, by way of substitution or otherwise, if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings; and may remove any party apparently wrongly included. 21

22 (4) permit any person to participate in proceedings, on such terms as may be specified, in respect of any matter in which that person has a legitimate interest. (5) strike out all or part of a claim or response on any of the following grounds (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out) (6) Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party ( the paying party ) to pay a deposit not exceeding 1,000 as a condition of continuing to advance that allegation or argument. Procedures The Tribunal Rules provide that it may regulate its own procedure and shall conduct the hearing in the manner it considers fair, having regard to the principles contained in the overriding objective. The rules do not restrict that general power. The Tribunal shall seek to avoid undue formality and may itself question the parties or any witnesses so far as appropriate in order to clarify the issues or elicit the evidence. The Tribunals are not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable (a) ensuring that the parties are on an equal footing; (b) dealing with cases in ways which are proportionate to the complexity and importance of the issues; (c) avoiding unnecessary formality and seeking flexibility in the proceedings; (d) avoiding delay, so far as compatible with proper consideration of the issues; and (e) saving expense. A judgment or order takes effect from the day when it is given or made, or on such later date as specified by the Tribunal. A party shall comply with a judgment or order for the payment of an amount of money within 14 days of the date of the judgment or order, unless (a) the judgment, order, or any of these Rules, specifies a different date for compliance; or (b) the Tribunal has stayed the proceedings or judgment. What happens at the Tribunal hearing of your case? 22

23 On arrival at the hearing the parties and their respective representatives are shown to the applicants and respondents waiting rooms. A party can represent himself or be represented by a solicitor or barrister or other representative who need not be a lawyer. Frequently applicants attend Tribunals with a friend or partner as well as advisors from law centres or Citizens Advice Bureaux. Trade union representatives also attend. Employers can also represent themselves or more usually instruct a solicitor or barrister. Often a representative from a legal expenses insurer or legal consultants will provide representation. Many Tribunal offices have 12 to 15 Tribunals sitting every day. As well as the Judge and two other members there is a clerk who will meet the parties in the waiting rooms and take their names, ascertain who is giving evidence and ascertain their religion for the purpose of taking the oath. Most wages claims and unfair dismissals are (like preliminary hearings) heard by an Employment Judge sitting alone. The waiting rooms are usually small and crowded with few (if any) private interview rooms, which means it is usually almost impossible to talk privately about the case. The atmosphere is frequently fraught with urgent negotiations to try and settle case going on in corridors and on the stairs. When the Tribunal is ready to hear the case the parties will be called in to the hearing room where the three Tribunal members will already be waiting. If you are talking to the other party and need more time to discuss a settlement an application can be made to delay the start of the hearing while further discussions take place. Most Tribunals are only too glad to see cases disposed of by settlement but equally when a case has been listed for hearing they are aware that time is limited and parties may be told to choose to proceed or not as the case may be. However there is little excuse to leave negotiations of settlement until you are entering the hearing especially when there has been a conciliation period and no deal was struck using the services of ACAS. The rooms are usually of moderate to small size. In the larger rooms there may be a slightly raised platform where the Tribunal sit facing two rows of desks and chairs which the parties and their representatives use. Between the Tribunal and the front row desks there will usually be a desk for witnesses and a clerk s desk. The procedure at the hearing is less formal than the High Court or County Court when sitting in open court. It is similar to the County Court sitting in Chambers. The members of the Tribunal and the Judge behave in the same formal way as magistrates or a District Judge. The Judge usually takes a proactive role in the proceedings. Many will start the hearing by trying to narrow the issues especially when one party is represented and the other is not. Having read the papers beforehand most Judge start the case having reached certain conclusions about the likely outcome and will give indications of this in order to try and get the parties to go and settle. If the matter proceeds it is for the employers to lead evidence first in an unfair dismissal to justify the dismissal decision. If dismissal is not admitted the employee will have to give evidence first. In discrimination cases the employee who is claiming has to present his case first. 23

24 Witnesses give evidence on oath and are subject to cross-examination and questions from the Judge and Tribunal members and the parties representatives. Both parties or their representatives will make a final speech and the Tribunal will usually retire to decide the case. Sometimes the decision is reserved to be given at a later date or sent out in writing. If the Tribunal decides the case on the day it will give its reasons in writing later. Parties should remember to ask for the decision to include extended reasons. These are the full reasons, not just a summary, and it saves asking for them later if you are considering whether to appeal, in which case you must have the extended reasons, because an appeal must be based on an error of law in the Tribunal s reasons. Compensation is often decided at a separate hearing to the merits of the case. The purpose of adjourning to a separate remedies hearing is to give the parties the chance to settle and save costs. If there are three members on the Tribunal the decision is made by the majority however if for any reason there is only the Judge and one other member then the Judge has a casting vote. When judgment is reserved a written judgment shall be sent to the parties as soon as practicable. All judgments (whether issued orally or in writing) shall be recorded in writing and signed by the Judge. Legal Costs in Employment Tribunals. In the High Court or County Court it has traditionally been usual that costs follow the event (in other words the loser pays the winner s legal bills). Even in those courts the rules are changing. However in the Tribunals the position is that orders for costs do not normally follow the event. In most cases no order for one party to pay the other s legal costs will be made. A Tribunal or Judge may make an order ( a costs order ) that a party ( the paying party ): make a payment in respect of the costs (ie fees, charges, disbursements or expenses incurred by or on behalf of the receiving party (including expenses that witnesses incur for the purpose of, or in connection with, attendance at a Tribunal hearing) incurred by another party ( the receiving party ) while legally represented or while represented by a lay representative. make a payment to the receiving party in respect of a Tribunal fee paid by the receiving party; or make a payment to another party or a witness in respect of expenses incurred, or to be incurred, for the purpose of, or in connection with, an individual s attendance as a witness at the Tribunal or make a payment to another party ( the receiving party ) in respect of the receiving party s preparation time while not legally represented. Preparation time means time spent by the receiving party (including by any employees or advisers) in working on the case, except for time spent at any final hearing. A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that 24

25 (a) a party (or that party s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success. A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party. A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. No such order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application. Where in proceedings for unfair dismissal a final hearing is postponed or adjourned, the Tribunal shall order the respondent to pay the costs incurred as a result of the postponement or adjournment if (a) the claimant has expressed a wish to be reinstated or re-engaged which has been communicated to the respondent not less than 7 days before the hearing; and (b) the postponement or adjournment of that hearing has been caused by the respondent s failure, without a special reason, to adduce reasonable evidence as to the availability of the job from which the claimant was dismissed or of comparable or suitable employment. A costs order may (a) order the paying party to pay the receiving party a specified amount, not exceeding 20,000, in respect of the costs of the receiving party; (b) order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, by way of detailed assessment (c) order the paying party to pay the receiving party a specified amount as reimbursement of all or part of a Tribunal fee paid by the receiving party; (d) order the paying party to pay another party or a witness, as appropriate, a specified amount in respect of necessary and reasonably incurred expenses or (e) if the paying party and the receiving party agree as to the amount payable, be made in that amount. (2) Where the costs order includes an amount in respect of fees charged by a lay representative, for the purposes of the calculation of the order, the hourly rate applicable for the fees of the lay representative shall be no higher than 33. (3) For the avoidance of doubt, the amount of a costs order under sub-paragraphs (b) to (e) above may exceed 20,000. The Tribunal has also got the power to order a representative to pay a wasted costs order where they are incurred as a result of any improper, unreasonable or negligent act or omission on the part of the representative; or which, in the light of any such act or omission occurring after they were incurred, the Tribunal considers it unreasonable to expect the receiving party to pay. 25

26 Reconsideration of Tribunal Orders and Appeals An Employment Judge may at any time correct any clerical mistake or other accidental slip or omission in any order, judgment or other document produced by a Tribunal. If such a correction is made, any published version of the document shall also be corrected. If any document is corrected under this rule, a copy of the corrected version, signed by the Judge, shall be sent to all the parties. A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision ( the original decision ) may be confirmed, varied or revoked. If it is revoked it may be taken again. Appeal from the decision of an Employment Tribunal lies on a point of law only to the Employment Appeal Tribunal ( EAT ). The EAT is a court and is presided over by a High Court Judge and two or four members who are themselves experienced in industrial relations. As in the Tribunals membership is balanced so that the employee and employer members are equal in number. From the EAT appeal may lie to the Court of Appeal and onwards to the Supreme Court who in turn may refer cases to the European Court of Justice. The Advisory, Conciliation and Arbitration Service ( ACAS ) is a Government body established under the Employment Protection Act 1975 to promote the improvement of industrial relations in particular by the settlement of trade disputes. In relation to most matters that can come before Employment Tribunals ACAS may conciliate. Either party may request the help of ACAS before or after a complaint is made to a Tribunal. When a complaint is put before the Tribunal ACAS must conciliate whether requested to help or not if the conciliation officer considers that there is a reasonable prospect of success and in any event if requested to do so. In cases of unfair dismissal where the employee has ceased to be employed the officer is obliged to seek reinstatement or re-engagement (unless the applicant seeks only compensation or the officer considers it impractical to seek reinstatement or re-engagement). In order to conciliate the conciliation officer from ACAS allocated to the case will contact both parties and their representatives to investigate the possibility of conciliation. He can then assist by discussing the case with each party and relaying comments from one to the other and their respective offers and counter offers as appropriate. If agreement is reached the conciliation officer will reach a binding agreement set out in a COT3 form that has to be signed by the parties. The officer will tell the Tribunal to vacate the hearing directly. 26

27 DISCRIMINATION The law that covers discrimination in employment in the UK (England, Wales and Scotland, different provisions apply in Northern Ireland) is the Equality Act Previous anti-discrimination legislation that had been introduced over many years including the: Equal Pay Act 1970; Sex Discrimination Act 1975; Race Relations Act 1976; Disability Discrimination Act 1995; Employment Equality (Religion or Belief) Regulations 2003; Employment Equality (Sexual Orientation) Regulations 2003; Employment Equality (Age) Regulations 2006; Equality Act 2006, Part 2; Equality Act (Sexual Orientation) Regulations 2007; was replaced by the Equality Act 2010 with effect from October 1 st Under the Equality Act: Discrimination in the workplace on grounds of a person s: age; disability; sex; sexual orientation; race; religion or belief; gender reassignment; pregnancy and maternity; or, marriage or civil partnership, is unlawful. Workers or employees who believe they have been so discriminated against at work can make a complaint to an Employment Tribunal. Employment Tribunals can make unlimited compensation awards in discrimination cases, which can also involve compensation for injury to feelings. Employers can be shown to be liable for discrimination by others if they cannot show that they took reasonable steps to prevent discrimination. There is a duty to make reasonable adjustments for disabled people. It is possible to discriminate before someone becomes an employee during the recruitment stage and also after they have left employment. Discrimination in the workplace can also apply to workers who may not be employees people who carry out work, even though they may not be employees under a contract of employment, such as contract workers or partners in a firm. Discrimination can be direct or indirect, by association or perception, and by way of victimisation or harassment. It is now unlawful in most cases to ask questions about health or disabilities during the recruitment process. Clauses in contracts of employment to prevent employees discussing their pay with anyone else are now unenforceable. The underlying concepts of the new equality law are protected characteristics and prohibited conduct. 27

28 Protected characteristics The protected characteristics are: Age Age refers to a person s age or the age range that applies to them. Age is different from other protected characteristics. If you can show that it is objectively justified, you can make a decision based on someone s age, even if this would otherwise be direct discrimination. Disability A disability is a physical or mental impairment that has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities. There is a duty for employers to make reasonable adjustments for disabled people during recruitment and in the workplace. Race Refers to a group of people defined by their race, colour, and nationality (including citizenship) ethnic or national origins. Sex A person s gender, male or female. Sexual orientation Whether a person's sexual attraction is towards their own sex, the opposite sex or to both sexes. Gender reassignment The process of transitioning from one gender to another. Marriage and civil partnership Marriage is defined as a union between a man and a woman. Same-sex couples can have their relationships legally recognised as civil partnerships. Civil partners must be treated the same as married couples on a wide range of legal matters. Pregnancy and maternity Pregnancy is the condition of being pregnant. Maternity refers to the period of 26 weeks after the birth. Different treatment can be lawful only if it is to comply with health and safety laws. Religion or belief This includes any religious or philosophical belief including lack of belief. Prohibited Conduct Prohibited conduct is: Discrimination; 28

29 Failure to make adjustments for disabled people. Discrimination can consist of: Direct discrimination; Associative discrimination; Perceptive discrimination; Indirect discrimination; Harassment; Third party harassment; Victimisation. 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. Associative discrimination This is direct discrimination against someone because they associate with another person who possesses a protected characteristic. Perceptive discrimination This is direct discrimination against an individual because others think they possess a particular protected characteristic. It applies even if the person does not actually possess that characteristic. Indirect discrimination Indirect discrimination can occur when you have a condition, rule, policy or a practice in your company that applies to everyone but particularly disadvantages people who share a protected characteristic. Indirect discrimination can be justified in some circumstances if you can show that it is a proportionate means of achieving a legitimate aim. Discrimination arising from disability Where someone is treated UNFAVOURABLY by their employer because of something arising in consequence of their disability and the employer cannot show that it is a proportionate means of achieving a legitimate aim they may have a claim for being discriminated against. This type of discrimination only occurs where the employer knew or was reasonably expected to know the employee had the disability. An example of this sort of discrimination is where A is dismissed because of his level of absence from work and the level of absence is caused by their disability. 29

30 Harassment This is unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. Employees can complain of behaviour that they find offensive even if it is not directed at them or if they do not possess the relevant characteristic themselves. Employees are also protected from harassment because of perception and association. Harassment applies to all protected characteristics except for pregnancy and maternity and marriage and civil partnership. Victimisation Victimisation occurs when an employee is treated badly because they have made or supported a complaint or raised a grievance or because they are suspected of doing so. An employee is not protected from victimisation if they have maliciously made or supported an untrue complaint. There is no longer a need to compare treatment of a complainant with that of a person who has not made or supported a complaint under the Act. Not all forms of discrimination apply to the protected characteristics of marriage and civil partnership (only direct and indirect discrimination, and victimisation) or pregnancy and maternity (only direct and indirect discrimination). Failure to make adjustments for disabled people The duty to make reasonable adjustments aims to make sure that a disabled person has the same access to everything that is involved in getting and doing a job as a non-disabled person, as far as is reasonable. When the duty arises, the employer is under a positive and proactive duty to take steps to remove or reduce or prevent the obstacles a disabled worker or job applicant faces. The employer is not required to do more than what is reasonable, and what is reasonable to do can depend, among other factors, on the size and nature of their organisation. But if, however, they do nothing, and a disabled person can show that there were barriers that they should have identified and reasonable adjustments they could have made, a claim may be made in the Employment Tribunal, and the business may be ordered to pay compensation as well as make the reasonable adjustments. Employers only have to make adjustments where they are aware or should reasonably be aware that an employee or applicant has a disability. What is a disability? The Equality Act defines a disabled person as a person with a disability. A person has a disability for the purposes of the Act if he or she has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. 30

31 This means that, in general: the person must have an impairment that is either physical or mental; the impairment must have adverse effects which are substantial; the substantial adverse effects must be long-term; the long-term substantial adverse effects must be effects on normal day-to-day activities. People with HIV infection, cancer and Multiple Sclerosis The Act states that a person who has cancer, HIV infection or multiple sclerosis (MS) is a disabled person. This means that the person is protected by the Act effectively from the point of diagnosis. People deemed to be disabled The Act provides for certain people to be deemed to meet the definition of disability without having to show that they have an impairment that has (or is likely to have) a substantial, adverse, long-term effect on the ability to carry out normal day-to-day activities. Regulations provide for a person who is certified as blind, severely sight impaired, sight impaired or partially sighted by a consultant ophthalmologist to be deemed to have a disability. Exclusions from the definition Certain conditions are not to be regarded as impairments for the purposes of the Act. These are: addiction to, or dependency on, alcohol, nicotine, or any other substance (other than in consequence of the substance being medically prescribed); the condition known as seasonal allergic rhinitis (e.g. hayfever), except where it aggravates the effect of another condition; tendency to set fires; tendency to steal; tendency to physical or sexual abuse of other persons; exhibitionism; voyeurism. The exclusions apply where the tendency to set fires, tendency to steal, tendency to physical or sexual abuse of other persons, exhibitionism, or voyeurism constitute an impairment in themselves. The exclusions also apply where these tendencies arise as a consequence of, or a manifestation of, an impairment that constitutes a disability for the purposes of the Act. Also, disfigurements which consist of a tattoo (which has not been removed), non-medical body piercing, or something attached through such piercing, are to be treated as not having a substantial adverse effect on the person s ability to carry out normal day-to-day activities. A person with an excluded condition may nevertheless be protected as a disabled person if he or she has an accompanying impairment which meets the requirements of the definition. For example, a person who is addicted to a substance such as alcohol may also have depression, or a physical impairment such as liver damage, arising from the alcohol addiction. While this person 31

32 would not meet the definition simply on the basis of having an addiction, he or she may still meet the definition as a result of the effects of the depression or the liver damage. A summary of an employee s statutory rights The effects of the various different pieces of legislation that affect the relationship between employer and employee mean that employees have a number of statutory rights. This is a basic list of those rights. Please remember that some of them are subject to various qualifying conditions. Written statement of employment terms and conditions Employers must normally give employees a written statement of the main terms and conditions of employment within two months of their starting work. It has to include, among other things, details of pay, hours, holidays, notice period and, disciplinary and grievance procedures. Itemised pay statement All employees are entitled to an individual written pay statement at or before the time of payment. It has to show gross pay and take-home pay with the amounts and reasons for variable deductions and fixed deductions. Notice of termination Both employer and employee are normally entitled to a minimum period of notice of termination of employment. After a month s employment an employee must give at least a week s notice. An employer must give the employee, after a month s employment, at least one week s notice, rising to two weeks after two years of employment, three weeks after three years of employment and so on up to a maximum of 12 weeks. There are, however, exceptional circumstances when an employer is entitled to dismiss without notice or payment in lieu of notice. This is when an employee is guilty of gross misconduct. Written reasons for dismissal Employees who have completed at least two year s continuous employment (or one year if their period of continuous employment began before April 5 th 2012) before the date of termination are entitled to receive, on request, from their employer a written statement of the reasons for dismissal within 14 days. If you are a woman and you are dismissed during pregnancy or maternity leave, you are entitled to a written statement of the reasons regardless of how long you have worked for the employer and whether or not you have requested it. If an employer follows a fair disciplinary procedure they will necessarily state the reason for the dismissal in writing. Time off for public duties Under certain circumstances, employers are obliged to allow employees who are holders of certain public offices, such as a magistrate, prison visitor or member of a local authority, reasonable unpaid 32

33 time off to perform such duties. Employees summoned for jury service also cannot be dismissed or treated detrimentally. Unfair dismissal Employees have a general right not to be unfairly dismissed, and if they have been continuously employed for two years or more 2,they have a right to seek redress by complaining to an Employment Tribunal. In certain circumstances the qualifying period can be reduced such as when an employee is dismissed on medical grounds as a result of certain health and safety requirements. There is no need for the qualifying period if the dismissal was for one of the automatically unfair reasons, the most important of which are: a) For trade union membership or activities or non-membership of a union. b) Seeking to assert a statutory right. c) Taking certain types of action on health and safety grounds. d) Pregnancy or any reason connected with maternity. e) Refusing to work in a shop or betting shop on a Sunday. f) Acting as a representative for consultation about redundancy. g) Performing any duties relevant to an employee s role as an employee pension scheme trustee. h) Making a protected disclosure under the Public Interest Disclosure Act i) Being summoned for jury service or absence on jury service. Statutory sick pay Employees have a right to SSP paid by the employer providing they meet with certain qualifications. Agency workers may be categorised as employed earners for those purposes. If that is the case, they become liable to pay national insurance contributions in the same way as other employed earners and should have the same opportunity to qualify for all statutory payments, including statutory sick pay. Maternity rights All pregnant employees are entitled to reasonable time off to keep appointments made on the advice of a registered medical practitioner, midwife or health visitor for antenatal care. A pregnant employee is entitled to take up to 52 weeks maternity leave (made up of six months (26 weeks) ordinary maternity leave, and a further six months (26 weeks) additional maternity leave). A woman is entitled to Statutory Maternity Pay ( SMP ) if she has worked for her employer for a continuous period of 26 weeks ending with the 15th week before the expected week of childbirth and her average weekly earnings are at least equal to the lower earnings limit for National Insurance contributions. SMP can be paid for up to 39 weeks. She will receive maternity allowance if she does not qualify for SMP. 2 (or one year if their continuous employment began before April 5 th 2012) 33

34 Paternity rights There is a statutory right to take up to two weeks paternity leave either in a block of one or two weeks, for fathers of children who are newly born or placed for adoption. It must be taken during 56 weeks of the date of the birth/adoption and is additional to the right to 13 weeks parental leave. To qualify for paternity leave the father must have been employed by the same employer for 26 weeks by the 15th week before the expected birth. He will have a right to return to the same job and protection from detriment and unfair dismissal. He will be paid paternity pay. Additional paternity leave of up to 26 weeks is available to eligible fathers of children born after April 3 rd 2011 where the mother chooses to return to work without taking her full entitlement to maternity leave, and where the additional paternity leave falls within the period in which the mother would have been eligible for statutory maternity pay it may be paid. It can only be taken once the mother has returned to work and where the child is over 20 weeks old. Transfer of a business or undertakings (TUPE) If a business or undertaking, or part of an undertaking, is transferred or sold to a new employer then employees who are employed by the old employer are automatically transferred to become employees of the new employer. The new employer takes over the employment liabilities of the old employer. If the old or new employer dismissed an employee because of the transfer of an undertaking or part of an undertaking then the dismissal will be considered automatically unfair by the Employment Tribunal. However the employee must have the required 2 years continuous employment to bring an unfair dismissal claim. Shop working on Sundays Workers in shops have the right not to be dismissed or picked out for redundancy or subject to any other sort of action as a direct result of refusing to work on a Sunday. Redundancy pay Employees who are made redundant are entitled to receive a compensation payment, the amount of which is related to their age, weekly pay and length of service. Workers who have not completed two years continuous employment are not entitled to redundancy payments. Discrimination Employees have a right not to be discriminated against on grounds of their age, disability, race, sex, sexual orientation, gender reassignment, marriage or civil partnership, pregnancy and maternity or their religion or beliefs. Men and women who do the same work are entitled to receive equal treatment, and this means more than just pay, but also terms and conditions, apart from those relating to pregnancy. The Equality Act also protects employees from harassment on the grounds of their age, disability, race, sex, sexual orientation, gender reassignment or their religion or beliefs, and also from victimisation for complaint both during and after their employment. 34

35 Disability It is against the law for employers to discriminate without justification against employees or prospective employees on account of disability. Employers have a positive duty to make reasonable adjustments in working conditions and requirements to prevent a disabled employee being placed at a substantial disadvantage. Working hours and annual leave Under the Working Time Regulations many employees have a statutory right not to work more than 48 hours a week and to have a certain amount of paid annual leave a year (5.6 weeks up to a maximum of 28 days). They are also entitled to work breaks and there are other restrictions, which apply to night working. The National Minimum Wage The majority of workers have a right to be paid at least the National Minimum Wage. Guarantee payments A guarantee payment is made by an employer to an employee who is not provided with work, when he would normally be under his contract of employment, because of a reduced need in the business for work of the kind he is employed to do, or another occurrence affecting the normal working of the employer s business. It applies mainly to hourly rate and piece workers. The maximum entitlement is five days in any three-month period. Only those employed for a month or more may claim. Parental leave and time off for dependants Employees with a year s service are entitled to up to 13 weeks parental leave before a child is five years old. All employees now have the right to take a reasonable period of time off work to deal with an emergency involving a dependant, and not to be dismissed or victimised for doing so. The right enables employees to deal with an unexpected or sudden problem and make any necessary longer-term arrangements. The 1999 Employment Relations Act introduced these rights for employees as part of the Government s family-friendly policies. Flexible working In order to make a request under the right you must: be an employee; have worked for the same employer continuously for 26 weeks at the date the application is made; not have made another application to work flexibly under the right during the past 12 months. 35

36 Scope of a request If you are eligible you may request: a change to the hours you work a change to the times when you are required to work to work from home. The procedure The procedure is that you have to make an application in writing. You can make only one application a year under the right, and if your employer agrees to the application this will mean a permanent change to your terms and conditions of employment. Your employer must consider your application in a reasonable manner and inform you of the decision and, if necessary, allow you to make an appeal about the decision, within three months of receiving the initial application. An employer is allowed to refuse your application if it considers that one or more of the following grounds apply: 1. the burden of additional costs 2. detrimental effect on ability to meet customer demand, 3. inability to re-organise work among existing staff, 4. inability to recruit additional staff, 5. detrimental impact on quality, 6. detrimental impact on performance, 7. insufficiency of work during the periods you propose to work, 8. planned structural changes. Right to be accompanied at certain hearings Workers have a statutory right to be accompanied by a fellow worker or trade union official where they are required or invited by their employer to attend certain disciplinary or grievance hearings and when they make a reasonable request to be so accompanied. The request to be accompanied need not be in writing. Right to request time off from work to undertake study or training With effect from April 6 th 2010, qualifying employees in workplaces where there are 250 or more employees gained a right to request time off work for study or training. Employers have a duty to seriously consider requests within prescribed time limits and if necessary hold a meeting with the 36

37 employee at which the employee has the right to be accompanied. Requests may only be turned down for one or more of a list of permissible grounds for refusal. Whistle-blowers The Public Interest Disclosure Act 1998 protects workers (not just employees) from being victimised or dismissed for making disclosure (often in breach of contractual terms against breach of confidentiality) in certain circumstances. Only information about criminal activity, other illegality, danger to individual health and safety, environmental damage or concealment of information about these matters is protected. The worker must act in good faith, believe reasonably that his disclosure is in the public interest and protected and that it is true. Disclosure to the employer, a legal adviser, a Minister of the Crown, a Regulator, or someone to whom the employer has a legal responsibility is protected provided that the employee believes that his employer will punish him, evidence will be destroyed or that other workers have made previous disclosure without effect. Other criteria apply. Data protection The Data Protection Act 1998 gives employees rights to access data stored about them in their employer s records. The law now extends to all written records and photographs as well as electronic data that fall within the definition of personal data. Information about an individual that is filed or otherwise readily accessible by reference to the individual is regulated by the Act. The definition of data processing is now so wide as to encompass almost anything an employer will do with information about employees including obtaining it, storing it and accessing it. To enable an employer to carry out data processing lawfully he must comply with the data principles set out in the Act. They are that data must be: Fairly and lawfully processed; Processed for limited purposes; Adequate, relevant and not excessive; Accurate; Not kept longer than necessary; Processed in accordance with the data subject s rights; Secure; Not transferred to countries without adequate protection. An employer must give certain information to his employees and obtain their consent to his data processing. Health & Safety Every employer has a legal duty to protect the health and safety of its employees. 37

38 Statutory rights Although many employment rights are the result of statute, they do not create any legal right other than as set out expressly. The law sometimes allows someone to sue as a civil action for damages where a statutory right has been broken. No such right applies in employment law cases. Getting advice: Expert help is not far away. If you think you may have been unfairly dismissed or are the victim of discrimination then we can help. Contact: Martin Phillips on [email protected] Bloomsbury Law Solicitors 17 Manchester Street, London, W1U 4DJ Nearest Underground Stations: Bond Street and Baker Street. 38

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