Helping you to make your case
When something goes wrong at work, whether you’re an employee or employer, you should start keeping a record of what happens. If a time comes when you have to seek advice, you need to have all the evidence safely recorded and it would be helpful to be able to show your solicitor or other representative a timeline and a calendar of what’s happened, with all the details and any supporting evidence that you have uploaded.
The Equality Act 2010
The Equality Act 2010 replaced a number of earlier laws about race, sex and age discrimination with the much simpler concept of people having ‘protected characteristics’ and of there being ‘prohibited conduct’ by employers.
It is now unlawful to discriminate against anyone at work because of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation, or membership (or non-membership) of a trade union. These are referred to as ‘protected characteristics’. Although the law generally assigns the same protection to each of the protected characteristics, there are certain exceptions that can apply in different areas of employment.
Prohibited conducts are discrimination and failure to make adjustments for disabled people.
Someone who believes they are the victim of discrimination at work due to a protected characteristic can make a claim to an Employment Tribunal and could be awarded compensation for any damage or loss suffered including injury to feelings.
Absence from Work
The fundamental concept of employment is that an employee works for their employer at the times and places agreed in their contract of employment.
An employee’s absence from work is often the basis for disputes between employers and their staff.
The Working Time Regulations and other industry specific regulations, like those that regulate drivers’ hours, control the number of hours that an employee can work before having to have a break and time off work. In addition, every worker now has a right to a set period of paid annual leave. How and when an employee takes holiday will be regulated by the contract of employment. For example, many employers have periods of annual shutdown when the workplace is closed and staff are obliged to take their holidays.
Your rights to take leave
Apart from holidays the law also provides that employees have a right to take leave from work for different reasons.
Content box: See our list of legitimate reasons for taking leave from work
Legitimate reasons for taking leave from work include:
- maternity leave, paternity leave, parental leave, and adoption leave;
- time off for:
- family and dependents;
- antenatal care in pregnancy;
- duties as a trade union official
- duties as a trade union learning representative
- duties as a member or candidate for membership of a European works council;
- trade union activities;
- 16/17 year olds to study for certain educational qualifications;
- during notice of redundancy to seek new work;
- duties as a pension fund trustee;
- duties as a health and safety representative;
- duties as an employee representative;
- accompanying another worker to a disciplinary or grievance hearing where the right to be accompanied applies;
- performing certain ‘public duties’ – including service as a Justice of the Peace or a member of a local authority or statutory tribunal;
- while suspended.
Although there is no law that specifies that an employee is allowed to have leave from work for jury service the effect is the same because subject to certain exclusions most employees are liable to serve as jurors and failure to do so is contempt of court. Dismissal for taking time off for jury service would be unfair dismissal.
Absence due to sickness
Apart from holidays or other statutory leave the most common reason for an employee being absent from work is time off because the employee is sick. An employee who takes time off claiming to be sick when they are not sick will be guilty of misconduct and subject to discipline and even dismissal.
Most employers have terms in their contracts or procedures that specify the way in which an employee must report sickness. The contract of employment should cover whether an employee would be paid when off sick. If it does not provide any period of paid sickness then the only obligation on the employer is to pay Statutory Sick Pay.
Long term sickness
Long-term sickness may prevent an employee from being capable of doing their job and entitle their employer to terminate the employment. To avoid such a dismissal being unfair the employer should follow a fair procedure and obtain evidence about the employee’s capability either from the employee’s own doctors or by arranging an examination by an occupational health specialist. Only when there has been consultation with the employee and consideration of alternative employment can a decision that the employment is brought to an end be made. Where the sickness is likely to last for 12 months or more, or otherwise amounts to a disability as defined by the Equality Act, then the employer must avoid discriminating against the employee and consider all the reasonable adjustments that can be made to enable the employee to continue working or to return to the workplace in the future.
Compassionate leave of absence
In the event of a member of an employee’s family who lives with them, being taken suddenly ill, then leave to make arrangements to care for them may be taken under the right for time off to care for dependents. However, this is not applicable to non-dependent members of the family or for non-emergencies. An employer who dismissed someone simply because they took time off to care for a relative taken ill or because of the death of a relative would be acting unfairly but equally there is no right to take leave on bereavement unless it falls within the right to take time off to care for dependents. There is no right to be paid for such leave either. Undoubtedly taking time off to arrange a funeral and to attend it falls within the right to leave where the deceased is the employee’s spouse, partner, child, parent or other family member who lives in their household
Enforced absence due to arrest or a custodial sentence
If someone is arrested and held in custody or receives a custodial sentence they will obviously not be able to attend their work. An employer may find such an event entitles him to dismiss the employee either for gross misconduct or for some other substantial reason. Alternatively, it will automatically bring the contract to an end because it is frustrated by the impossibility of the employee performing his part of the contract. This will almost certainly be the case if the employee is sent to prison for a substantial period.
Working parents’ rights
Working parents have the right to:
- Maternity leave and pay
- Paternity leave and pay
- Shared parental leave and pay
- Unpaid parental leave
- Time off for family and dependants
- Unpaid time off to accompany partner to ante-natal appointments
- Adoption leave and pay
- Statutory pay
Workers may have problems or concerns about their work, working environment or working relationships that they wish to raise and have addressed. A grievance procedure provides a mechanism for these to be dealt with fairly and speedily, before they develop into major problems and potentially collective disputes.
Employers are required by law, in the written statement of terms and conditions of employment, to specify, by description or otherwise, a person to whom the employee can apply if they have a grievance and they are also required by law to allow a worker to be accompanied at certain grievance hearings.
Employers should have procedures which comply with the ACAS Code of Practice on disciplinary and grievances.
Dismissing an employee
Employment can usually only be terminated by an employer giving a period of notice to an employee unless the employee is contracted to work for only a specific fixed period or the contract provides for circumstances that automatically end it. If the employer ends the contract this is a dismissal.
Constructive dismissal is where an employee resigns in circumstances where he/she is entitled to treat the contract as brought to an end by a fundamental breach of contract on the part of the employer, for example:
- Where it is found the trust and confidence between employer and employee is destroyed
- Abusive or discriminatory behaviour by an employer towards an employee,
- A serious unilateral variation of contractual terms by the employer or
- Conduct intended to provoke the employee’s resignation may well cause a constructive dismissal.
Generally an employee who has completed more than two continuous years employment is protected from unfair dismissal. In order for a dismissal to be fair the reason for the dismissal must be one of these potentially fair reasons:
- Reasons related to the capability or qualifications of the employee.
- Reasons related to the conduct of the employee.
- Where his continued employment would involve him or the employer contravening a duty or restriction imposed by law.
- Some other substantial reason.
In all cases the employer’s decision to dismiss must satisfy a test of fairness. If the employer has not followed a fair procedure in making the decision to dismiss an employee the dismissal will usually be ruled to be unfair.
A Tribunal will look at all the circumstances of a dismissal in order to decide whether the decision to dismiss was a reasonable response to the circumstances and the facts known to the employer at the time.
If the claimant is found to be unfairly dismissed the Tribunal will award compensation made up of two components. Firstly, the basic award, which is calculated in the same way as a statutory redundancy payment by multiplying a week’s pay by the number of years worked, adjusted according to the claimant’s age. Secondly, over and above the basic award, the Tribunal may award compensation to meet the claimant’s financial losses caused by the dismissal. The maximum award of compensation is fixed by law.