We often see clients who are generally aggrieved about the way that their employer has treated them. Although they genuinely feel that they have suffered unfairness at work, unless this can be linked to a specific legal protection which an employee is eligible to claim for, there are no overarching laws ensuring a legal right to protection from unfair treatment from their employer.

What legal protections might be relevant to unfair treatment?

General unfairness is not itself a legal claim. Just because treatment is unfair it does not mean it is breaking any employment laws, however unjustly someone feels they have been treated. However, there are a variety of related claims that an employee can make against unfair treatment, such as harassment or discrimination.

Where the client is still employed i.e. they have not resigned or been dismissed then depending upon the nature of the unfairness, they may have a claim for discrimination or harassment. Such claims must be because of, or related to a protected characteristic such as sex, disability, race, sexual orientation, religion or belief, marital status, maternity or gender reassignment.

Discrimination will involve less favourable treatment because of a protected characteristic or, suffering disadvantage linked to said characteristics. However, fairness in this context does not mean treating everyone the same – difference in treatment does not break any laws as long as it is not less favourable or, in the case of indirect discrimination where it can be objectively justified for example, on the grounds of business needs.

Where the complaint involves pay then an unlawful deduction from wages claim may be relevant. If differences in pay are linked to the gender of those doing certain jobs, an equal pay claim will potentially be appropriate, this may quantify as gender discrimination.

Complaints relating to excessive work hours, lack of rest breaks or refusal to allow holiday could be dealt with as a Working Time Regulations claim while the National Minimum Wage Act might assist where the grievance concerns low pay.

Issues around childcare, parental leave and pay and flexible working can be complex as there is a wealth of regulations governing this area, including discrimination laws. Consequently, we might be able to point out a legal entitlement of which a client was not aware as part of our advice.

Often, if the business in which an employee works is sold, there can be issues with the new employer attempting to introduce changes to terms and working conditions. Employees are usually protected under the Transfer of Undertakings (TUPE) against detrimental changes in treatment in such a scenario.

Last but by no means least, a basic breach of contract claim is often the best way of enforcing an individual’s rights and ensuring these are not eroded. This type of claim potentially covers a multitude of areas; the key is to be clear what the terms of the employment contract actually are.

However, it should be remembered that there is no general contractual obligation on an employer to conduct fair treatment of their employees in the workplace.

What about unfair dismissal?

Where the individual is employed under a contract of employment i.e. they are an employee, there are laws protecting them against unfair dismissal.  This protection does not extend to other categories of workers or those who are self-employed.

This means that, once they have been employed at a single place of work for two years or more, they can only be dismissed by their employer for one of the five potentially fair reasons for dismissal, namely:

  • redundancy,
  • capability,
  • misconduct,
  • illegality,
  • another substantial reason.

In addition, an employer must follow a fair process before terminating their employment.

Of course, an employer is still able to dismiss an employee unlawfully but, the individual will then have a claim in the employment tribunal (as long as this is brought, in most cases, within three months).

Can a claim be made against constructive dismissal?

The closest we come to a claim for general unreasonable behaviour at work is a claim for constructive dismissal. This may also be a claim for unfair dismissal, depending on whether the individual is an employee with enough qualifying service. An employee will often resign and claim constructive dismissal when relations have reached such a poor state, they feel they can no longer carry on working for the employer.

A constructive dismissal occurs where an employee resigns in response to something the employer has done (or not done) which, is so serious, it amounts to a fundamental breach of contract. While this must be something more than mere unreasonable behaviour by the employer, it covers a huge and potentially unlimited range of conduct by the employer.

Usually, the term of the contract which an employee claims is breached by the employer in this scenario is the implied term of trust and confidence. This is a term which is implied into all employment contracts and is something of a “catch-all”.

For example, an individual who complained about bullying on several occasions, but their employer refused to deal with it might claim this was a breach of the implied term. From here, they may resign claiming constructive dismissal as they felt unable to continue to work in a hostile environment.

 

 

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