Employment Advice and Employment Tribunals Service

Last Updated: 04.12.2010

Most people are entitled to certain statutory rights, although often qualifying conditions must be fulfilled before a right may be claimed. Some rights apply to all employees as soon as they start work; others depend on factors such as length of service, continuity of employment and activities in addition to the job. Most rights apply only to employees but some apply to wider groups of workers.

Employment law is very complicated, specialist advice is available from our North Ayrshire Citizens Advice Bureau Employment Advisers if you need to know more about a specific issue or are considering taking any action.

Problems at work

Problems at work and employment issues is something which affects most of us at some time during our lives, and it is the area of law that is probably the most complex and the most frequently changed and added to. So getting the right advice in this field can be quite difficult.

Amongst the most common employment issues that fall under employment law are:

• Unfair and constructive dismissal
• Employment tribunals
• Redundancy
• Employment rights e.g. minimum wage, working hours, maternity and paternity rights etc.
• Workplace discrimination and harassment

Unfair dismissal

Where an employer dismisses an employee without good reason, the employee can potentially raise an Employment Tribunal claim for either wrongful or unfair dismissal. Wrongful dismissal can arise where a dismissal is in breach of contract, for example, where an employee is dismissed without notice in circumstances which does not justify summary dismissal.

In order to raise a claim for unfair dismissal, the employee will require to satisfy a Tribunal that:

• they were an employee, whether part time or full time
• they had the necessary continuity of service (normally one year’s continuous service) to bring a claim for unfair dismissal, and
• they were dismissed.

However, there are certain circumstances where employees with less than one year’s service can bring an Employment Tribunal claim for unfair dismissal. Examples of this include dismissal for health and safety reasons, as a result of whistle blowing, or on the grounds of race, sex, disability, sexual orientation or religious belief.

Constructive dismissal

Constructive Dismissal is where your employer has acted in such a way towards you that allows you to leave your job and treat yourself as dismissed. Whilst your employer has not actually fired you, they may have brought your employment to an end by their behaviour. An example of this would be where your employer persistently bullies you and forces you to leave your job. A constructive dismissal may either be brought about by one particular incident or it may be a series of incidents.

Remember to prove constructive dismissal you need to show that your employer's actions were sufficiently serious to allow you to leave your job. It is not necessarily enough that you consider your employer has acted unreasonably.

Employment tribunals

If you believe you are the victim of unfair dismissal (constructive or otherwise), or have any other employment law issue, you can make an application to an employment tribunal using an originating application (i.e. form ET1). This can be submitted as soon as your employer has dismissed you and in some cases prior to dismissal.

In the ET1 you will need to detail the grounds of your complaint. In most instances it must be received by the Tribunal within three months of the date of termination of employment or three months from the date of the event complained of.

If the application is received later than the three month deadline an employment tribunal will consider the complaint only if they believe it was not reasonably practicable for the employee to submit the claim within the time limit. This is an extremely difficult test for an employee to satisfy.

However, in regards complaints of unlawful discrimination the Tribunal has discretion to extend the three month deadline if it considers, in all the circumstances of the case that it is just and equitable to do so. The Tribunals approach to such time limits is more lenient.

Nonetheless, it is imperative that the Tribunal time limits are observed.

It should also be noted the Statutory Dispute Resolution procedures can extend the time limits and certain claims can not be brought to the Tribunal until a grievance has been submitted to the employer. Such claims include:

• Unlawful deduction from wages
• Constructive dismissal
• Redundancy payment
• Unlawful discrimination other than dismissal
• Equal pay
• Holiday pay

To read more about Employment Tribunals visit our employment disputes, mediation and employment tribunals page.

This is an extremely complex area of law and we strongly advise that you speak to a North Ayrshire Citizens Advice Bureau Employment Adviser before commencing a claim.

Redundancy

If you are one of the unlucky employees of the one the many businesses currently making redundancies as a result of the economic downturn, it is vital to know your rights, otherwise you may find yourself unfairly dismissed. Your employer has two obligations, the company should have valid reasons for making you redundant and it must follow a fair process.

These procedures include:

• how people are chosen for redundancy
• consulting with you before you are made redundant
• following a three-step dismissal process
• giving you proper notice of redundancy
• offering you alternative work, where possible
• giving you time off to look for another job.

If you are made redundant you are entitled to three payments: a full notice period, a redundancy payment and unclaimed holiday leave.

Full notice pay

You are entitled to your full notice pay which is usually in your contract, but in the absence of such a provision you can receive statutory notice.

Redundancy pay

There is a statutory amount payable calculated using a specific formula. But it is also worthwhile checking whether you have a contractual entitlement to an enhanced redundancy payment.

Unclaimed holiday leave

You are also entitled to payment for any accrued but untaken holiday.

What to do if you have been treated unfairly

If you feel you have been treated differently from other employees you should consult an employment solicitor, or speak to a North Ayrshire Citizens Advice Employment Adviser as early as possible. There is a three-month time limit from the day you were dismissed to launch a challenge.

To read more about redundancy visit our redundancy and leaving your job page.

Employment rights

Your rights at work will depend on your statutory rights and your contract of employment.

Your contract of employment cannot take away rights you have by law. So if, for example, you have a contract which states you are only entitled to two weeks' paid holiday per year when, by law, all full-time employees are entitled to 28 days' paid holiday per year, this part of your contract is void and does not apply. The right you have under law (to 28 days' holiday in this case) applies instead.

If your contract gives you greater rights than you have under law, for example, your contract gives you six weeks' paid holiday per year, then your contract applies.

There are special rules about the employment of children and young people.

National Minimum Wage

The National Minimum Wage (NMW) is a minimum amount per hour that most workers in the UK are entitled to be paid. If you are being paid below the NMW you can contact the Pay and Work Rights Helpline for confidential help.

There are different levels of NMW, depending on your age and whether you are an apprentice. The current rates are:

• £5.93 - the main rate for workers aged 21 and over
• £4.92 - the 18-20 rate
• £3.64 - the 16-17 rate for workers above school leaving age but under 18
• £2.50 - the apprentice rate, for apprentices under 19 or 19 or over and in the first year of their apprenticeship

Most workers are entitled to receive at least the National Minimum Wage. Only in very specific situations are people not entitled to receive it. If you are not being paid the National Minimum Wage you should find out whether you are entitled to receive it before making a complaint.

Workplace discrimination and harassment

Discrimination means treating someone worse than other people for some reason. You have rights not to be treated worse than other people at work because of your:

• age
• disability
• pregnancy or maternity leave
• race
• religion or belief
• sex
• sexual orientation
• gender identity

Discrimination can be either direct or indirect. Direct discrimination occurs when someone is treated worse than other people for some reason. For example, if an Asian employee is not selected for promotion because of their race, this is direct race discrimination.

Indirect discrimination occurs where a particular employee cannot meet a requirement which is not justifiable in terms of the work and they are at a disadvantage as a result. For example, if the employer only gives training to full-time workers, this would indirectly discriminate against women, as most part-time workers are women.

Harassment is also a form of discrimination. Harassment can include verbal abuse, suggestive remarks and unwanted physical contact. You may also be discriminated against if you are victimised because you have tried to take action about discrimination.

If you are having problems at work

If you are having problems at work or have any other employment issue, please visit a North Ayrshire Citizens Advice Bureau and speak to an Employment Adviser. You can find our contact details at the bottom of the page, our hours of business can be found on our opening hours page, alternatively, you can email us via our contact us page.