Can an employee appeal against the employer?
Nothing should stop an employee from making an appeal if he/she is not satisfied with the action taken by the employer. The appeal should be in writing, stating the employee’s grounds and reasons for the appeal. Employers should respond to the employee in writing, without unreasonable delay. An employee also has a statutory right to be accompanied by a colleague or union representative. A failure by an employer to resolve a grievance can, in certain circumstances, amount to constructive dismissal. If your employer has failed to resolve a grievance which is making your workplace intolerable for you, please contact me immediately and I will advise you of your options. If you think that your problems at work have not been resolved fairly or reasonably, please click here
to contact me.
Can you appeal against disciplinary procedures?
Generally speaking (as it depends on an individual’s circumstances), an employee may appeal against such disciplinary procedures if he/she believes that:
- The decision was wrong.
- Unfair procedures were used.
- The punishment is too harsh.
- New evidence has come to light.
There are other unforeseen circumstances. An employee cannot make an Employment Tribunal claim against a warning, or disciplinary procedures reached, although an employee could claim constructive dismissal if the conduct of his/her employer forces him/her to leave. There is also an alternative approach to this, which is to suggest mediation.
How should you raise your grievance at work?
This should be done in writing and should set out the nature of your problems, concerns or complaints.
What are Disciplinary procedures?
Disciplinary procedures are used by employers to tell employees that their performance or conduct isn’t up to the expected standard. Employers should always bear in mind principles of fairness when applying any disciplinary procedures. If an employee has been subjected to disciplinary procedures, it is the right of the employee to have a clear and informed decision on all the allegations made against him/her, together with supporting evidence. The employee should also be given the opportunity within a reasonable time frame to challenge the allegations before such decisions have been reached. If an employer decides to go ahead with the sanctioning of such disciplinary procedures, the employee should be given the right to appeal against it.
What are the various forms of discrimination?
Some kinds of discrimination are perfectly legal. For example, it is not illegal to discriminate against people who are overweight or who support a different football team to you. However oranges are not the only fruit. Discrimination on any of the following characteristics is illegal under the Equality Act 2010.
- Gender / Sex / Sexual orientation.
What happens after the grievance meeting?
The employer should decide on the most appropriate action. However, its decision should be clearly communicated to the employee in writing and, where appropriate, the employer should state and set out what action it intends to take to resolve the grievance.
What happens if you are suspended from work?
Whilst your disciplinary procedure issue is being investigated, your employer may or may not choose to suspend you. If an employer suspends an employee whilst conducting any investigation, an employee has the right to be told why he/she is being suspended.
When you are being suspended, you need to identify from your employment contract whether your employer can suspend you without pay. If your employment contract makes no mention about suspension from work without pay, your employer may still be able to suspend you, but with pay.
Your employment rights remain the same when you are being suspended. If an employee doesn’t receive the right pay during his/her suspension of work, he/she will have a claim for ‘unlawful deduction from wages’.
Complications may arise when an employee is told not to talk or communicate with other employees, customers and/or suppliers. If the result of this limitation is to prevent an employee from defending himself/herself, the employee may decide to use this as a ground to appeal.
What is a direct access barrister and does it benefit me?
It is now possible to go directly to a barrister for advice or representation without having to go through a solicitor – which was the only way for several hundred years. The new approach is known as ‘direct access’ or ‘public access’ and it is available in both civil and criminal cases.
The first advantage of instructing a barrister direct is that you will save the cost of having a solicitor prepare a brief for the barrister. You may also, with the advice the barrister gives you, be able to correspond with the other party directly yourself – again saving the costs of solicitors’ letters.
Secondly, when instructing a barrister direct, much of the work that would normally be done by a solicitor, such as collating documents and photocopying, will be done by you. Which means more cost savings.
It has been estimated that clients who come direct to barristers can save between 50% and 60% of their legal costs in suitable civil and criminal matters.
By going direct you may also find that the job is done quicker, and that you have more control over your case.
What is Constructive Dismissal?
Constructive dismissal is a type of Unfair Dismissal . It happens when an employee is forced to quit his/her job against his/her will because of his/her employer’s conduct. Another way to look at it is: an employee has to resign because of some serious action or omission by the employer which causes the employee to reasonably believe that continuation of employment is impossible. A fundamental change in the contract of employment (although on occasion the court might accept a detrimental change to the contract of employment), or a refusal to improve intolerable working conditions, might justify such a resignation.
If you bring an action against your employer for constructive dismissal, you need to show that:
- Your employer has committed a serious breach of contract.
- You felt forced to leave because of that breach.
- You have not done anything to suggest that you have accepted their breach or a change in employment conditions.
The usual procedure to bring a claim against your employer for Unfair Constructive Dismissal is to file Form ET 1 within 3 months of the date that your employment terminated. However, resigning and claiming constructive dismissal thereafter is obviously a high-risk strategy.
What is Direct discrimination?
It is where someone is treated less favourably than another person because of a protected characteristic.
What is Associative discrimination?–
This is direct discrimination against someone because they are associated with another person who possesses a protected characteristic.
What is Discrimination by perception?
This is direct discrimination against someone because others think that they possess a particular protected characteristic. (Whether they do or not doesn’t matter).
What is Harassment?
behaviour that is offensive to the recipient. Employees can now complain of the behaviour they find offensive even if it is not directed at them.
What is Indirect discrimination?
When there is a rule or policy that applies to everyone but disadvantages a person with a particular protected characteristic.
What is unfair dismissal?
Unfair dismissal is where an employee is dismissed for a reason which is unfair OR without a fair procedure being followed.
A successful claim for unfair dismissal will attract a basic award of up to £15,240 (from April 2018)
. In addition, an employee can claim up to £83,682 (if dismissed on or after 6 April 2018)
in compensation if an employment tribunal finds that they have been dismissed unfairly.
In order to claim unfair dismissal you usually have to have worked for an employer (continuously) for a minimum period of 2 years
If an employee does not have this period of continuous employment they cannot claim unfair dismissal unless they can show that they have been dismissed for one of the automatically unfair reasons. (when the ‘2-year rule’ does not apply).
A dismissal may be automatically unfair if it relates to any of the following:
- Family reasons (pregnancy, childbirth, maternity leave, parental leave, adoption leave, paternity leave, or time off for dependants);
- Health and Safety;
- Sunday working;
- Dismissal of an employee or director who is also a pension scheme trustee;
- Being an employee representative, a candidate to be an employee representative or participation in election of an employee representative;
- Asserting a statutory right;
- Minimum wage claims;
- Tax Credits;
- Requests for flexible working;
- Automatic enrolment in a pension scheme;
- Trade union membership or activities;
- Recognition or de-recognition of a trade union;
- A request for study leave or training;
- Asserting rights as a part-time worker;
- Asserting rights as a fixed-term employee;
- A transfer of an undertaking ( TUPE transfer);
- Selection for redundancy on inadmissible grounds;
- Asserting rights for information and consultation or transitional information and consultation;
- The exercise of rights under Occupational and Personal Pension Schemes.
- Asserting rights as an agency worker.
Damages for unfair dismissal can be increased if:
- an employer has failed to follow the ACAS Code of Practice
- an employer has failed to provide written particulars of employment.
Damages for unfair Dismissal can be reduced if:
- The employee would have been dismissed anyway;
- The employee has contributed towards his/her dismissal;
- The employee has not mitigated their loss (taken reasonable steps to find another job or otherwise financially help themselves);
- To account for state benefits received after dismissal.
What is Victimisation?
A person being treated badly because they have made or supported a complaint or grievance under this legislation.
What should happen after you have raised your grievance at work?
Upon receiving your letter of grievance, your employer should arrange for a formal meeting to be held without unreasonable delay.
When do you have a case for constructive dismissal?
If your employer has overstepped the mark and treated you badly, you may have the right to resign without notice and make a claim for constructive dismissal.
Where this happens, the law treats the employee as having been dismissed by the employer.
There is no hard and fast rule as to what amounts to a constructive dismissal (following a ‘repudiatory breach of contract’) – it depends upon the facts surrounding your case.
Examples of where claims for constructive dismissal have been successful are:
- Degrading, demoralising conduct by an employer;
- Threatening behaviour towards an employee;
- Bullying or harassment in the workplace;
- Humiliating criticism in front of other staff;
- Moving an employee into unsuitable working conditions;
- Offering to accept an employee’s resignation;
- Failing to pay wages;
- Sudden demotion for no good reason;
- Fundamental changes to an employee’s conditions of employment without agreement;
- Trying to make an employee work in dangerous conditions;
- Undermining the authority of a senior employee;
- A series of less serious incidents that are serious when taken together.
To claim for constructive dismissal you must have:
- Resigned because of your employer’s behaviour;
- Resigned soon after the relevant incident took place.
There is no need for your employer to have accepted your resignation.
The time limit for bringing a claim for constructive dismissal is three months from the date upon which the employer received the resignation.
Who should you raise your grievance at work with?
When it is not possible to resolve a grievance informally, you should raise your grievance at work formally to your employer. This is usually your immediate line manager as long as he or she is not the subject of the grievance, in which case take the grievance to his/her line manager or, if there is one, to the HR department.