The Law

Gavel On a Legal TextOur main area of expertise is discrimination law, but we recognise that often people struggle to get advice on general employment law as well so we have included some information here about that too. If your case is purely employment law and not discrimination law we may also be able to deal with it, depending on your particular situation.

This information is intended to be a brief guide only and does not replace professional advice.

You can also download our more detailed guide to your rights booklet here, updated for June 2014

Discrimination Law
The Equality Act 2010 protects on the basis of 9 ‘protected characteristics’

  • Race
  • Disability
  • Age
  • Gender reassignment
  • Sexual orientation
  • Gender
  • Marriage and civil partnerships
  • Pregnancy
  • Religion or belief

The Act provides protection for people from discrimination in employment, services, education, training, clubs and associations and premises.

Three women, faces onlyThere are different types of discrimination:
Direct discrimination
– When someone is treated less favourably than another person ‘because of’ their protected characteristic they have or are thought to have.

Discrimination by association – this is new in the Equality Act 2010. This is direct discrimination against someone because they associate with someone who has a protected characteristic

Perception discrimination – This is where someone is discriminated against because someone perceived they had a protected characteristic.

Discrimination arising from a disability – this is new under the Equality Act, which says that treatment of a disabled person amounts to discrimination where:

  • an employer treats the disabled person unfavourably;
  • this treatment is because of something arising in consequence of the disabled person’s disability; and
  • the employer cannot show that this treatment is a proportionate means of achieving a legitimate aim,
  • unless the employer does not know, and could not reasonably be expected to know, that the person has the disability.

Indirect discrimination – it is about applying a provision, criteria or practice (PCP) that applies to all but particularly disadvantages people who share a protected characteristic. Indirect discrimination can be objectively justified.

Harassment – there are 3 definitions of harassment in the act:

a) General harassment – 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

b) Conduct of a Sexual Nature – where A engages in unwanted conduct of a sexual nature and the conduct has the purpose or effect of violating B

c) Rejection of or submission to conduct of a sexual nature – where A or another person engages in unwanted conduct of a sexual nature (or is related to gender reassignment or sex) and the conduct has either the purpose or effect of violating B and because of B’s rejection or submission to the conduct A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct

Cartoon of one red man and 5 white men pointing

Victimisation – When someone is treated badly as a result of:

  • Making a complaint or supporting a complaint under the Equality Act
  • Raised a grievance or supported a grievance under the Equality Act or
  • They are suspected of doing so

We will deal with your case right from the beginning until the end. That means that we will give you initial advice, deal with all correspondence and advocacy at hearings. We will essentially act for you in all aspects of the case using our experience in discrimination law.

If you think you have been discriminated against you have a very short time-scale to make a complaint – 3 months from the date you became aware of the discrimination for employment cases and 6 months for all others.

Recent changes to the law mean that before you can submit an application to the Tribunal, you must approach ACAS and use their Early Conciliation Service. This is intended to try and help you reach an early resolution to your case, without the need for a hearing. If it doesn’t work then they will issue you with a certificate, which we will need in order to submit a claim on your behalf. The time limit ’freezes’ in these circumstances and time does not run again until you receive your certificate acknowledging that your attempt at conciliation is finished. You will always have at least a month to present your claim to the tribunal.

Bear in mind if you approach ACAS when you are already outside your time limit, they cannot change that – it would be for a Tribunal to decide whether to accept the case or not.

General Employment Law
The most important legislation in employment matters is the Employment Rights Act.

Unfair dismissal
If you have worked for your employer for over two years and are dismissed, you may be able to claim unfair dismissal. There are certain ‘automatically unfair’ dismissals such as those based on discrimination law, because of trade union membership, health and safety and others.

A dismissal is fair for the following reasons:

  • Misconduct at work.
  • Lack of capability (or qualifications) to do the job.
  • Redundancy.
  • A statutory requirement.
  • Some other substantial reason.

However, even if the employer convinces a Tribunal that they dismissed their employee for one of those reasons, they still have to show that they followed a reasonable procedure as set out in the Acas (Advisory, Conciliation and Arbitration Service) code of practice. They must also show that the decision to dismiss fell within the range of reasonable responses open to an employer.

Equality street signConstructive dismissal
Constructive dismissal is when an employee resigns because of a significant and fundamental breach of their contract of employment by their employer. These cases are hard to win. Not every breach of contract will entitle an employee to resign and claim constructive dismissal.

To amount to constructive dismissal, the breach (which could stem from a single event or an accumulation of them) must be serious. That is, it must be a fundamental breach of contract (e.g. a breach of the implied term of mutual trust and confidence). Generally, to rely on the breach, the employee needs to resign fairly soon after it occurred and if you wait until you have another job it is likely it would not be considered constructive.

Wrongful dismissal
Unlike unfair dismissal, which is a statutory right, wrongful dismissal is a contractual right. It comes about if the employer terminates the employment contract contrary to the terms contained in it – for instance, by failing to give the correct notice. In those circumstances compensation is usually loss of earnings for the notice period.

The minimum statutory periods of notice required from an employer are:

1 month to 2 years of employment = 1 week’s notice
2 years to 12 years of employment = 1 week for each year worked
12 years plus of employment = 12 weeks’ notice

But your contract of employment may include a greater notice period.

Failure to pay statutory notice may give rise to a claim of unlawful deduction from wages.

Redundancy
The law says there is a genuine redundancy situation if an employee is dismissed because the business as a whole, or the particular workplace where the employee worked, has closed down. Likewise, if the employer decides to reduce the size of the workforce to do work of a particular kind.

If the employee can show that their dismissal fell into one of these categories, they may be entitled to a statutory redundancy payment, or possibly a contractual one.

Employees are eligible for statutory redundancy payments if:

  • they have two or more years continuous service since the age of 18
  • they are below “normal” retirement age (which depends on the employer’s normal practice on retirement)

For each full year of continuous employment up to a maximum of 20 weeks, an employee is entitled to:

age 41 and over: one and a half week’s pay per year of service
age 22 to 40: one week’s pay per year of service
up to age 21: half a week’s pay per year of service

There is a limit to the basic weekly pay which can be claimed and which is updated every year. Currently it is £430.

Employees can lose their right to a statutory redundancy payment if:

  • They are offered their old job back or a suitable alternative and they unreasonably refuse.
  • They are dismissed for gross misconduct during the redundancy notice.
  • They resign before the end of the notice period.

A contractual redundancy payment is only payable if there is a contractual right to an enhanced payment. A policy which is expressed to be discretionary will not usually be contractual unless very specific other conditions apply.

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