Key concepts in mainstream employment law

Workers have many kinds of legal rights in connection with their employment. In addition to anti-discrimination rights, some of the main employment rights which do not relate to discrimination law concern unfair dismissal, redundancy pay and notice periods.¹ An employee who has not disclosed his or her HIV status at work may wish to deal with problems at work without making reference to HIV or anti-discrimination legislation.

Moreover, it’s possible to bring a disability-discrimination claim together with another type of claim, for example for unfair dismissal.

Dismissal means that the employer terminates the contract. Under the law, some dismissals are ‘fair’ and others ‘unfair’.

Dismissal may be fair if the employer can show that it is for one of the following reasons:

• a reason related to the employee’s conduct (misconduct or poor performance)
• a reason related to their capability or qualifications for the job (the employee doesn’t have the skills or ability to do the job, or their illness makes them unable to attend work regularly to do the job properly)
• because of redundancy
• because the worker has reached the normal retirement age
• because a statutory duty or restriction prohibited the employment being continued
• some other substantial reason of a kind which justifies the dismissal.

Moreover, the employer must show that they acted ‘reasonably’ in treating that reason as sufficient for dismissal and followed a fair procedure. Employment tribunals look at previous legal decisions and the Acas Code of Practice in deciding what is reasonable.

Acting unreasonably would include not giving the employee enough warning in the run-up to taking the decision to dismiss them. Also, if other employees in similar circumstances had been treated differently, this inconsistency could mean that actions were considered to be unreasonable.

Employees have the right not to be unfairly dismissed (usually after one year of employment). A reason not listed above as ‘fair’ would be unfair.

These rights normally start after one year of employment, but there is no qualifying period for cases of alleged discrimination. A complaint of unfair dismissal must be received by an employment tribunal within three months of the end of employment, and this time limit is strictly enforced.

Wrongful dismissal is when dismissal happens in a way that is in breach of the employment contract, for example dismissal without giving proper notice or without following the contractual disciplinary procedures. It is a concept derived from common law and is different to unfair dismissal.

Redundancy is a form of dismissal, caused by the employer needing to reduce the workforce. This could be because new technology or a new system has made the job unnecessary, the job the employee was hired to do no longer exists, costs must be reduced, fewer people are needed to do the work, or because the business is closing down or moving.

For redundancy not to be considered an unfair dismissal, the employer must have:

• used a selection criteria that was objectively justified and fairly applied
• had a proper consultation
• tried to find alternative work for any employee who was made redundant.

Constructive dismissal occurs when an employee resigns because the employer has substantially and fundamentally breached their employment contract. Examples of an employer’s actions could include:

• cutting a worker’s wages without agreement
• unlawfully demoting them
• allowing colleagues to subject them to harassment, bullying, victimisation, humiliation or discrimination
• unreasonably increasing their workload
• unreasonably changing the location of their workplace
• making them work in dangerous conditions.

In order for a situation to be described as constructive dismissal, an employee needs to be able to show that:

• there was a fundamental breach of the contract by the employer

• this breach of contract caused the employee to resign

• the employee did not wait too long before resigning (he or she may leave immediately after a very serious incident, or after the last of a series of incidents)

• that the employee used the appropriate internal-dispute procedures (grievance or appeal), or had a good reason not to.

It is important for employees to follow grievance procedures before resigning - if they do not, an employment tribunal could reduce the amount of compensation awarded.

If an employee resigns because the employer has consistently failed to agree to reasonable adjustments as required by the Equality Act, this could be both constructive dismissal and discrimination.

This is a way of ending an employment contract without a dismissal, but is not commonly used at present. The contract may be frustrated if an external event means that the employment cannot be continued - for example, the employee is unwell or is imprisoned, and so cannot work.

This does not relate to ending the employment contract, but to paying the pension. Subject to medical reports, a company’s pension scheme may make early payment of the pension. This will normally only happen if the employee is unable to carry out his or her current job, or is incapable of any work, because of a long-term medical condition. The situations in which a person can receive early benefits will depend on the terms of the particular pension scheme, and not all pensions allow ill-health retirement.²

An employee can bring a grievance because of concerns or complaints about their work, employment terms, working conditions, discrimination or relationships with colleagues. Employers are legally obliged to inform the employees of what the company’s grievance procedures are. Employers are recommended to have written procedures that will help them deal with grievances fairly.

The Acas Code of Practice details a minimum standard of grievance procedure which should be available to all employees. In brief, the procedure in the Code for dealing with grievances is that:

• the employee should set out in writing the nature of the grievance

• the employer should hold a meeting with the employee to discuss the matter

• the employer should allow the employee to be accompanied at that meeting by a fellow employee or a trade-union representative

• the employer must decide on appropriate action

• the employer should allow the employee to take the grievance further if not resolved.

Acas (the Advisory, Conciliation and Arbitration Service) can often help to mediate between employees and employers where a dispute arises. The internal-complaints or grievance procedures should be followed before you go further with the complaint, as a failure to do so can result in a 25% reduction in any compensation awarded by an employment tribunal. Alternatively, trade unions may be able to help mediate or arbitrate between employees and employers.

Employment tribunals hear cases and make decisions on employment issues such as unfair dismissal, redundancy payments and discrimination, as well as claims relating to wages and other payments. They used to be known as industrial tribunals.

Employment tribunals prefer people to try to resolve issues through company grievance procedures before taking a claim to a tribunal. Taking an employer to an employment tribunal tends to be a last resort: the procedures are legalistic, precise, complex, stressful and often take some time. The employee’s chances of success are usually better if he or she is represented by a solicitor or legal adviser.

If an employment tribunal finds that an employee has been unfairly dismissed, it can order the employer to reinstate or re-engage them, although this rarely happens. More commonly, it will award compensation.

Under the Equality Act 2010, tribunals have new, wider powers in discrimination cases to make recommendations that employers take specific steps to change their employment practices, for example by changing their recruitment policy or providing staff training on diversity.