The law in the UK is quite specific and many advances have been made over the years to protect individuals and minority groups from discrimination in the workplace. 

Any person who is treated differently because of their race, sex, nationality, national or ethnic origins are protected after the 1st December 2003 is protected by these laws.  Discrimination against a person’s sexual orientation since 1st December 2003 and age discrimination since 1st October 2006.

The above laws mean the world of work is changing and employers now have to accommodate a much wider variety of religious and cultural needs in the workplace in some cases by making prayer rooms and taking a more flexible look on time for religious holidays.  Within this article we hope to cover the basics.

Discrimination is protected on the grounds of religious beliefs but not against political or philosophical beliefs.

Discrimination against someone’s sexual orientation applies to every variant but not to sexual practices or preferences.  Discrimination often occurs based upon the perception of a person’s sexual orientation, even if that perception is wrong.

Discrimination against sex can occur when two employees are paid different rates despite doing the same job or similar work because of their sex.

Disabled people are protected under the act of 1995 which places onus on the employer to implement measures to ensure the disadvantaged employee can perform their tasks equal well.  Discrimination can occur because a disabled person in the workplace receives  less favourable treatment than their colleagues who are not disabled.

Unfortunately the act does not apply to employers with less than 15 workers.

Discrimination can also happen when members of trade unions are treated less favourably than non members and also can work in reverse.

In the case of discrimination there is no minimum work service requirement of 1 year, you can bring a claim if you have only been in your employment a week or even if your not an employee and have been discriminated during a job selection process.

In the case of pregnancy there is no fair dismissal reason that is ever granted to the employer,  all cases will automatically be treated as unfair.  The employee doesn’t even have to be working for a year to claim protection.

Maternity laws protect mothers to be from any unfair treatment at work because of their pregnancy, childbirth or if they wish to take maternity leave.

The only cases where an employer is entitled to suspend an employee who is either:

• Pregnant
• Recently given birth
• breastfeeding

are as follows:

1. Health and Safety, if the employee’s job involves working with chemicals.
2. if the employee normally works on a night shift.

The employer can only suspend and not dismiss as this would be deemed unfair and before this happens the employer must consider alternative work for the employee.  If the employer fails in this respect the employee can make a complaint which must happen within 3 months of the suspension.

The employee if suspended receives full pay, however if the employee refuses to take an alternative offered post they are not entitled to full paid leave.

In October 2006 the employment equality regulations came into force protecting employees, vocational training employees  and trainees no matter how old or young from discrimination in the workplace.  This means that it is against the law to harass, discriminate or victimise employees or trainees on the grounds of age.

A case for “Direct Discrimination” would therefore occur if the employer treated or treats the employee less favourably than others based upon their age, unless of course they could objectively justify this treatment.

A case for “indirect Discrimination” would occur if the employer applied a criteria or provision that places people of a certain age group at a disadvantage and as a result they suffered.

A case for discrimination for “victimisation” could occur if the employer treats the employee less favourably than others because of something they have done in connection with the age regulations this could be supporting a work college or something similar.  It may even be a case where the employer has given instructions to an employee to discriminate against another employee and these instructions were not carried out it would still constitute grounds for discrimination relating to age.

The only fair reason for dismissal or discrimination is retirement if the employee is close to retirement age when they are applying for a position or being re employed the employer may decide that they are not right for the job based on their age and the job characteristics.  In any even the employee has the right to grievance and if found in their favour may be awarded up to 4 weeks pay.

It is important to be comfortable within your workplace and within its surroundings not least because you will be spending most of your life working but it helps give you the motivation to perform your job more effectively.

Each day in the UK people are uncomfortable with their workplace environments because they are suffering from discrimination and do not know what to do.

Direct Discrimination

Direct discrimination refers to an employee being less favourably treated over others because of their their race, marital status, sex, religion, sexual orientation or gender. A direct example could be a female and male candidate going for a job.  The female doesn’t get the interview but the male does despite her being more qualified.

There is also no argument on the part of the employer as the law only considers the result and not the reasons.

Indirect Discrimination

This form of discrimination is less obvious than others it involves a set of requirements, practices or conditions within the workplace imposed by the employer that discriminate again one group or another.
There are a three factors that are taken into account here.

• Firstly that the number of people from a particular group who can meet the job criteria is considerably smaller than the rest.

• The employer can not justify the criteria as being a real requirement of the job.

• The employee’s who cant comply with the employers criteria have suffered in some way.  An employee cant raise a complaint unless in some way they have lost out.

In the case of indirect discrimination, an employer can argue the fact that it is a necessary part of the job.  This is known as (GOR) Genuine occupational requirement.  It doesn’t happen all that often but does play a part in some organisations such as the Chinese restaurant who only wants Chinese staff for obvious reasons.

Wrongful Dismissal is often but should not be mistaken with Unfair Dismissal.  Wrongful Dismissal is based on contract law and involves the investigation of the employment contract.

There are many breaches made by an employer common ones include when an employee is dismissed without the proper notice being given. 

Either party can end the employment relationship if they give the necessary notice or in some conditions where the employee commits a breach of contract the employer is within their right to dismiss the employee so long as they have the necessary evidence to back up the breach.

Anything that breaches a mutual trust and confidence between employee and employer such as the goodwill between the parties which has to exist in the job can form a breach and if the employee accepts the breach by the employer and remains in their job, the employee can still seek compensation from the employer for the breach of their contract.

Examples include:

•  False allegations of misconduct.
•  Employee Harassement.
•  Unpaid wages 
• Changing the job or employment terms.
• Changing the work location without notice.

In cases of wrongful dismissal it is best to seek the advice of a trained professional in this field.

We spoke previously about a basic award covered in a previous article.  Another type of award considered by a tribunal is the compensatory award which sets out to compensate an employee against financial loss that relates to the dismissal this can include loss of benefits and expenses.  Under the compensatory award the maximum an employee can be awarded is £63k.
The Employment Tribunal considers the following:

Wage Loss

From the dismissal date until the tribunal hearing.  Notice given to the employee and claims benefits during this time will be taken into account.

Future Wage Loss

This is mainly guess work on the part of the tribunal as they have to estimate how long they believe the employee will be out of work based on their age, experience and skill demand.  If the employee has a new job that pays the same or more then they will not receive this award, however if the job pays less then an award figure is calculated.

Loss of Perks

This award relates to Health care benefits, company car, etc where a figure is calculated based on the monetary loss of these benefits.

How the employee was dismissed

This involves the way the employee was dismissed that could make it difficult for them to find or receive a new job offer, this mainly happens in close nit communities such as professions. 

Loss of Employment Protection

The tribunal takes into account the fact that the employee has to work for 1 year in a new job to regain protection rights and will calculate the award based upon this.

Loss of Pension Rights

The tribunal follows certain guidelines to calculate a fare compensation figure for any pension rights that have been lost.

Award Deductions

There will also be deductions made from your Compensatory Award which include:

1. Redundancy payments under your contract.
2. Payments made to the employee due to the dismissal.
3. If the employee shares the responsibility for the dismissal deductions will be calculated.
4. Deductions based on the employees willingness to find a new job.  If the employee has made no efforts to find a new job this is considered and penalised.
5. The award will be reduced if the the dismissal was fair however the way it was carried out was unfair.
6. If the employee has or has not given notice of appeal and if the employee has or has not attended can increase or reduce the compensation award.

Constructive dismissal cases cause a great deal of debate within the industry and many cases go unreported because the employee does not believe they have a valid claim.  If you think you have a case of constructive dismissal you need to ask yourself the question:

Did you leave your job due to your employers behaviour towards you?

This is an evocative subject so let’s spell it out.

Did your employer make your life difficult beyond reason making you feel that you could no longer remain in the job?

When you resign in these circumstances your resignation is viewed as a dismissal by your employer and you are entitled to claim for unfair dismissal. 

Proving a case of constructive dismissal can sometimes be tricky, your employer could deny your accusations and employment tribunals tend to give the employer the benefit of the doubt as they do not like to interfere with business management issues. 

You must therefore resign shortly after the incident or due to a build up of incidents as this constitutes a serious breach of contract on the part of your employer.  It is then up to you to prove the dismissal was unfair

Examples of Constructive Dismissal can include:

• Harassing or humiliating staff.  (mostly in front of less senior staff)
• Not supporting a manager in a difficult work situation.
• Victimisation of a particular member or members of staff.
• Changing the employee’s duties or terms without consulting the employee.
• Making a major change to the employees job location at short notice.
• The false accusation of misconduct such as the employee is incapable of performing their job.
• Making a significant change in the employee’s job location at short notice.
• The excessive and unjust demotion of disciple of an employee.
• Excessive demotion or disciplining of employees.

If you think you have a case of constructive dismissal, you need to get all your evidence together as this will prove king and present your case to a solicitor that is practiced in this field.

How the basic awards are calculated

The basic award is only one award for unfair dismissal there are others that an employee may be entitled to.  It is one of simple calculation using a number of variables and is simply worked out by taking the employee’s age the years of service and average weekly wage to determine a figure.

The weekly wage is limited to a maximum of £330.00 a week and the maximum number of service is limited to 20 years and the years of service also depend upon the age of the employee.

The calculation is as follows and applies for the years of service.

If the Age of the employee is less than 22 years, the weekly pay is multiplied by 0.5

If the age of the employee is between 22 and 41 the weekly pay is multiplied by 1

If the age of the employee is from 41 onwards, the weekly pay is multiplied by 1.5

This means the maximum award value would be 9.9k based on 20 years service at £330 x 1.5

It is important to note that award deductions can be made by the tribunal if the employee has already received redundancy payments, refuses an offer to be reinstated, is to blame for their own dismissal or has past bad conduct within the business.

Many people are dismissed from work for a variety of reasons, some mutual and some unfair.  If you believe that you have been unfairly dismissed you may wish to sue your employer under your employment rights.

If this is the case you should ideally consult with a solicitor right away and find one that specialises in Employment Law, the sooner you take action the better your chances.

To qualify for Unfair Dismissal you must be working full or part-time, the amount of hours worked each week is not relevant and you must have been in employment for at least 1 year.

There is only a 3 month deadline in most cases of unfair dismissal, extensions to the 3 month limit will only be granted if the employee had been ill, if they have received incorrect advice from Job Centre or Employment Tribunal staff, there had been a delay due to the postal service or new evidence has come to light after the date to making a claim possible.

Extensions will not be permitted if the employee did not know they could claim, if the employee waited for other legal action connected with the dismissal to end or a legal advisor gave incorrect advice.

We live in difficult times, the economy is struggling and increasingly business finds itself in difficult times with the need to shed excess company weight.  Obviously there is more than one reason why someone would be dismissed from work and the state of the economy is just the new buzz word. 

Many employers have no choice but to dismiss an employee from their position and in all these cases the law must be followed:

The two questions needing to be asked are. Was the dismissal for a fair reason ? and Was the dismissal dealt with fairly ?

This means that an employer can dismiss an employee for a valid reason however it may of been handled badly and if this is the case an unfair dismissal claim can be made.

An employment tribunal will consider many reasons for dismissing an employee:
Capability

1] Does the employee have the right qualifications for the job?
2] Was the employee incompetent was this repeated incompetence or one specific incident and was proper training and warning given?
3] Was the employee genuinely poorly on a regular basis.  What was the illness and how much time was taken off work.  Did the employer consider alternative work for the employee.

An employee’s conduct can give the employer reasons for dismissal such as:
 
Theft, corruption, taking bribes, being drunk at work, taking drugs while at work, abusive behaviour, leaking confidential information, hacking into computer files including stealing passwords, being absent from work on a regular basis, being constantly late for work. 

Wearing unsuitable clothes, taking holidays without telling the boss, poor conduct with other staff members during office hours, unsuitable conduct outside work hours that can impact on the job and basically telling your boss in no uncertain terms what you think of him/her.

In addition to everything the tribunal will consider if the conduct of the employee was looked into thoroughly and if the employer believed the employee committed the offence.

Redundancy
In the case of redundancy your employer must follow a fair procedure of selection. Once the procedure has been decided the employer must stick to it.  An employer cannot select an employee for redundancy if it is based upon one of the Unfair Dismissal Exceptions.

Breaking the Law
If the employer is in danger of breaking the law by continuing an employment contract he may dismiss the subject provided he has checked whether the situation can be made legal.

Other Reasons
Other reasons can be wide and vast and tend to cover every possible additional reason from a major client demanding it happen through to an employee refusing to use computers.

Fairness of Procedure

Did the employer use a fair procedure and was the eventual outcome reasonable.

• Any Employment Tribunal would consider:
• If the employee was given a fair hearing.
• If the evidence was used at the hearing or used at all.
• If the employee had a representative at the hearing.
• If there was more than one employee involved.
• If the employee had done this before.
• If the employer considered warnings.
• If the employer considered the overall performance of the employee
• If the employer considered disciplining the employee instead of dismissing
• Whether the employee had an effective right of appeal
• Whether whole procedure carried out in the same way as previous procedures.

If you think you have a case of unfair dismissal you need to seek representation from a firm who ideally specialises in this area.