Legal Information Centre


28 July 2008 by Jennifer Kelly

Employment law

The volume of employment legislation that has come into existence in the last decade has been staggering. However, the Government is now trying to relieve the burden on SMEs.

The volume of employment legislation that has come into existence since Labour came to power in 1997 has been staggering. The Government has passed employment law governing many aspects of our working lives, from limits on working time, health and safety, facilitating part-time working and outlawing employment discrimination on the grounds of age, disability and religious belief.

 

The employment law governing the circumstances when employees can and cannot be dismissed has also been tightened up. At the most basic level, employees have the right not to be unfairly dismissed, but that does not necessarily mean that you will have a claim. So, if you are facing dismissal, or have been dismissed already, what action can you take?





Unfair dismissal


According to the employment disputes arbitration service ACAS, employment law rules that dismissal is normally fair only if your employer can show that it is for one of the following reasons:

  • a reason related to your conduct;

  • a reason related to your capability or qualifications for the job;

  • because you were redundant;

  • because a statutory duty or restriction prohibited the employment being continued;

  • some other substantial reason of a kind which justifies the dismissal;

  • and that they acted reasonably in treating that reason as sufficient for dismissal.



Conversely, employment law deems that dismissals are classed as 'automatically unfair', regardless of the reasonableness of your employer's action, if you are exercising specific rights to do with:



  • pregnancy: including all reasons relating to maternity;

  • family reasons: including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants;

  • representation: including acting as an employee representative and trade union membership grounds and union recognition;

  • part-time and fixed-term employees;

  • discrimination: including protection against discrimination on the grounds of age, sex, race, disability, sexual orientation and religion or belief;

  • pay and working hours: including the Working Time Regulations, annual leave and the national minimum wage.



Constructive dismissal


According to employment law, constructive dismissal is where your employer makes your employment conditions become so intolerable that you are forced to resign. There is some legal controversy about whether your employer’s actions need to be specifically targeted at you or not in order to claim unfair dismissal – you will always need legal advice on employment law before launching a claim.



Usually, you will need to have had one year's continuous service before you can make a complaint to an employment tribunal, but if you are being dismissed for any of the ‘automatically unfair’ reasons, then according to employment law there is no minimum service requirement. Employees who are dismissed and have completed at least one year's continuous employment are entitled to receive, on request (orally or in writing), a statement of reasons for dismissal within 14 days. An employee dismissed during pregnancy or maternity/adoption leave is entitled to a written statement of the reasons regardless of length of service.



The time limits on unfair dismissal claims in employment law are quite tight. In most cases, your claim must be received by an employment tribunal within three months of the effective date of termination of the employment (usually the date of leaving the job).



Tribunals are time-consuming and distressing for employees but, as public hearings, they are potentially embarrassing for employers too, who will often try to avoid them at all costs. Nevertheless, the Tribunals Service showed that the number of employment tribunals in the UK rose by 15% in 2007 to 132,577 cases.



Consequently, many are keen to settle any claims before going to a tribunal hearing. Failing this, you can agree with your employer to enter mediation or have your case heard by an arbitrator under the ACAS Arbitration Scheme.



Going to tribunal


Employment tribunals are less formal than a conventional court although many of the same protocols apply. You can either represent yourself or be represented by a legal representative who will have indepth knowledge of employment law. Legal aid is not normally available for tribunal hearings, but for those that qualify it may be for the initial legal consultation to establish whether you have a claim under employment law– and if your case ends up at appeal. Normally, each side pays its own costs. However, the Government is planning to introduce charges for those taking a case. This is expected to happin in 2012.  If you are a member of a trade union, it may be able to provide you with initial legal advice on employment law and represent you at the tribunal.



It is usually for your employer to show that it was for a fair reason and that they have, as a minimum, followed the statutory disciplinary procedures. In such cases the tribunal must then decide whether, in the circumstances, your employer acted reasonably according to employment law in treating that reason as sufficient for dismissal.



Further details on the procedure can be found at: http://www.employmenttribunals.gov.uk/


Click here to read 'Using an employment solicitors'


Click here to seek professional advise with employment law matters





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