- Relevant law and advice on the strength of possible claims
Employment law governs the relationship of the employer and employee.[1] These laws seek to protect the rights of an employee. Employment laws seek to ensure fair practices at the workplace. In the UK, employment issues are governed by the Employment Rights Act of 1996, the Employment Relations Act 1999, and the Equality Act 2010. These laws not only seek to protect the employment rights of employees but also their human rights.[2]There are situations where the employer may terminate an employee’s employment for reasons related to their human rights exercise. For instance, there are situations where an employer terminates a person’s work because he/she is affiliated with a particular political party or because their religious beliefs do not conform to those of the employer. It is therefore essential for these laws to prevent such conduct by employers. In the case at hand, the client can institute claims relating to unfair dismissal and racial discrimination at the workplace.
- Unfair Dismissal
An employee’s dismissal can be fair or unfair, depending on the reason for dismissal and how the employee is dismissed.[3] Therefore, unfair dismissal is when an employee is dismissed without a fair reason.[4] The law provides for the right of every employee against unfair dismissal.[5] An employee can also claim unfair dismissal where the employer did not follow the correct procedure of dismissal. How a dismissal is done entails the language used and the procedure. The procedure for dismissal can be set out in the employment contract or the employment laws.
There are two main types of unfair dismissal, namely, constructive unfair dismissal and automatic unfair dismissal. Constructive unfair dismissal is where the employer forces the employee to leave the job by doing certain acts that are in breach of the contract of employment. On the other hand, automatic unfair dismissal is where an employee is dismissed for carrying out their statutory rights. The following instances highlight situations where an employee can be unfairly dismissed automatically. Where an employee is dismissed for being pregnant, an employee is dismissed for proposing specific changes at the workplace; an employee is dismissed for their political or religious beliefs and dismissal of whistle-blowers.[6] The loss of a job impacts negatively on the person’s finances and their image in society. Therefore, where a person loses their job and has their rights violated, the effect increases.
Consequently, recognizing that the impact of unfair dismissal is more due to the violation of human rights involved, the law has attempted to remedy employees who have been unfairly terminated.[7] The courts have also ensured that employees’ rights are not violated through the various decisions in the cases before them. The Employment Rights Act 1996 provides for employees’ right against unfair dismissal to prevent employers from unfairly dismissing employees. The Employment Rights Act further states the reasons that amount to fair dismissal to include; dismissal relating to the conduct of an employee, capability or qualifications of an employee, redundancy of the employee, or the employee could not continue working in that position without contravention of specific rules.[8] Therefore, where an employee is dismissed on any other grounds that do not seem to fall under the above categories, then he/she can claim unfair dismissal. The Public Interest Disclosure Act 1998 was also enacted to protect whistle-blowers at workplaces. Also, the European Convention on Human Rights provides for the protection of employees’ rights at their places of work.
The courts have also developed this unfair dismissal concept by their rulings that seek to protect the employees in most cases. In the case of Polkey versus AE Dayton Services Ltd,[9] the court held that employers should ensure they follow the correct and fair dismissal procedure. The appropriate dismissal process entails the employer giving the employee a notice of dismissal, after which he provides the employee with written reasons for his/her dismissal.[10]
Similarly, in this case, Onyinyenchi Madu can claim unfair dismissal from her employer. People can only claim unfair dismissal if he/she has been employed for at least two years before the dismissal. Madu worked for RefreshNet Ltd from 1st January 2019 to 15th January 2021, which marks exactly two years. Madu was dismissed without being given any proper notice. Only after she was dismissed was that the Human Resource manager informed her reasons for her dismissal upon her request. The employer claims that she was dismissed due to gross misconduct, which is a ground for summary dismissal. However, the reason why Madu was dismissed was because of her political beliefs and association. She wore the badge written #BLM, which did not align with her employer’s political views.
The employer had asked her to stop wearing the badge but without giving her any reasons. Moreover, how her employer confronted her was very offensive. The employer publicly shouted and swore at her and dismissing her immediately. Madu was never given any notice or reasons for her dismissal. As earlier discussed, the reasons and how her employer dismisses an employee dictate whether the dismissal is fair or unfair. In this case, Madu was unfairly dismissed with disregard for the law and right procedure.
From the above, it is evident that the client was unfairly dismissed from her previous employment. The disregard of due procedure and the law was apparent in how her employer dismissed her.
- Racial Discrimination
Racial discrimination can be described as any distinction based on race, color, descent, or national or ethnic origin for enjoyment or exercise of human rights on equal footing.[11] Therefore, racism is the system of assigning values to people based on their phenotypic properties, which unfairly disadvantages one group.[12] Statistics show that the incorporation of different races at workplaces in the UK is developing slowly. Racial discrimination mainly occurs because one race is superior and the rest are inferior, hence the need to dominate over the inferior races. These power differences also come up at workplaces, causing differential treatment of people from different races.
Racial discrimination at workplaces causes the racial pay gap, violation of freedom of expression of people from a particular race, and differences in people’s promotion rates from various races.[13] The racial pay gap exists because you may find people from different races doing the same work but being paid differently. Interestingly, there is no specific reason for the difference in pay except the idea that one race is superior to the other. This contributes to the high poverty levels, especially among the blacks. The freedom of expression can be violated at workplaces by demeaning and rejecting the views of people from different races. This also includes differential treatment of people due to their political beliefs. For instance, in this case of Madu, she expressed her political opinions by wearing the #BLM badge. However, her manager found that offensive and inappropriate because it brought up specific discussions at work. By denying Madu the opportunity to express her political views, her employer violated her freedom of expression. Madu was dismissed because her political beliefs contradicted those of her employer. She believed in standing up for the Black Lives Matter movement, which her employer found very uncomfortable that she had to get rid of her. Racial discrimination in employment can be demonstrated by having members of a single race dominating the workplace’s upper managerial positions. Determining who will be promoted only based on a person’s race also amounts to racial discrimination, as people of a certain race will often be left out.[14]
In the UK, various legislations have been put in place to deal with racial discrimination. The Constitution of the UK provides for the enjoyment of one’s rights without discrimination due to their ethnic or racial characteristics.[15] Also, section 13 of the Equality Act of 2010 recognizes race as a protected characteristic, hence preventing discrimination against a person based on race. These laws seek to deter employers from perpetrating any form of discrimination against their employees based on their racial and ethnic origins.
The courts have also reiterated the position of the legislations in their rulings in some instances. For instance, in the case of Mr. R Hastings versus Kings College Hospital NHS Foundation Trust,[16]the court held that the dismissal by the claimant’s employers was unfair and based on his race. The employers demonstrated a stereotype that most black persons are violent. They failed to be objective in their dismissal actions, which amounted to a form of racial discrimination against Mr. Hastings. The court awarded the claimant £1 million worth of damages.
From the above, it is clear that racial discrimination at the workplace negatively impacts the employees. Therefore, employers must ensure that such discrimination does not occur at workplaces to ensure peaceful coexistence among the employees. In a workplace where there is no racial discrimination, there are high levels of productivity.
- Compensation
An employee claiming unfair dismissal will take the complaint to the Employment Tribunal. When the tribunal finds the claimant had a valid claim, it is inclined to award specific remedies. The Employment Rights Act provides certain remedies available to the claimant, namely, reinstatement, re-engagement, and compensation.[17]
An order for reinstatement entails the employee’s return to his/her previous workplace as if he had not been dismissed.[18] An order for re-engagement entails returning an employee to the workplace, not specifically to the same job position but a position equivalent to his/her previous job.[19] The client in this particular case would not benefit from these two orders because she already got another job, and she does not wish to go back to work for Refresh Net Ltd.
The tribunal can also award an order of compensation to be paid to the employee by the employer. [20] Compensation is ordered where the claimant was unfairly dismissed. The compensation can be in the form of a basic award and a compensatory award.[21] A basic award is calculated by reference to the weekly pay, subject to the statutory cap, length of service, and age.[22] On the other hand, the compensatory award seeks to compensate the claimant for financial loss from dismissal, which includes lost earnings and lost benefits.[23] This compensatory award considers what is equitable and just about the loss sustained by the claimant due to the loss of the employment. The loss entails any expenses incurred by the complainant due to the dismissal. In this case, Madu lost her earnings for January when she was dismissed from her former workplace. She also lost the annual bonus that was awarded every April.
Under section 126(2), the Employment Rights Act shall avoid double compensation where the complainant claims unfair dismissal and discrimination. Therefore, where one of the actions has been considered under the other, there shall be no instance of separate compensation. These remedies are essential as they compensate the employee for the various violations of their rights at work.
The procedure of instituting a claim
Try to sort it out informally/directly with the employer.
If an employee has been treated unlawfully at the workplace, they can claim an employment tribunal. However, they can seek to exhaust to resolve the workplace issue before deciding to lodge a claim with the tribunal. The employee can raise the employer’s problem either formally, through a letter, or informal communication. If the employer fails to take any necessary action to resolve the issue, the employee is free to proceed to the tribunal.
Early Conciliation
Before lodging a claim to the tribunal, it is critical to inform ACAS first.[24]. ACAS is an independent organization funded by the UK government that finds solutions to assist both the employee and the employer and provides a certificate the employee needs to proceed to the employment tribunal. ACAS offers a claimant the chance to resolve the issue without formally engaging the employment tribunal process[25]. If the issue is settled through ACAS, the claim is removed from the hearing list and destroyed within 12 months.
Send the claim to the tribunal office.
The employment tribunal hears cases and decides on employment issues such as redundancy payments, discrimination at the workplace, unfair dismissal, and claims about wages and payments. The tribunal complies with rules of procedure, despite not being a formal court. For single claims, the claimant must complete and submit an “Early Conciliation form” to ACAS providing your basic details and information regarding the employer. If the claimant is bringing the claims against more than one respondent, they must complete a separate form for each issue. On receipt of the form, ACAS contacts the claimant to gather more information regarding the matter. If the claimant accepts the early conciliation offer, ACAS will have six weeks to negotiate the settlement.[26]. If conciliation is refused, ACAS issues a certificate allowing the claimant to proceed to the employment tribunal.
Information needed before a claim can be accepted
The claim cannot be accepted unless it meets specific conditions. The claim must be on an approved form, the prescribed form, provided by the employment tribunal. The claimant must include the following information;
- The claimant’s name and address
- The names and addresses of the respondent, in this case, Refreshment. And,
- The early conciliation certificate number provided by ACAS[27]
How soon can the claim be made?
Submission of the Early Conciliation to ACAS “stops the clock” on time needed to submit the claim. The time will start again when you receive the certificate from ACAS.[28]. In most scenarios, the claimant must submit the claim within three months from the date the employment was terminated. For example, in this scenario, Onyin was fired on 14th January 2021; she can therefore lodge a claim with the tribunal before 14th April 2021. Moreover, if the claim involves equal pay or redundancy pay, it must be made within six months. It is the responsibility of the claimant to ensure that the claim is made on time. The time limit depends on the type of appeal the claimant is making. For example, the claimant must appeal against underpayment within 28 days. If the claimant is sending the claim past the time set, they must explain the delay and provide evidence to support the reasons to enable the judge to decide whether the matter should proceed.
Where to send your claim
The tribunal cannot accept the form if it is not on a prescribed form provided by HM Courts and Tribunals Service. Using the online portal for submitting the form is the quickest way to send the claim. However, the claimant can also deliver a physical form to individual tribunal offices. The claim will not be accepted if; it is not on the specific approved form and if the claimant has not provided all the necessary information, including the early conciliation certificate.[29].
If the claimant’s claim is accepted, the tribunal sends a letter to the claimant to confirm the same. The tribunal also sends the respondent a copy of the claim with a form for their response. The claim can also be sent to ACAS, which might contact the claimant hoping to resolve the issue without the need for the employment tribunal. Correspondence will refer to the complainant as “claimant” and the other party as the “respondent.”
Cases are held to the tribunal closest to where the claimant worked. The claimant must have all documents supporting their case and are free to be accompanied by a colleague. Their lawyer’s claimant can present the case, and the respondents present their case against the claimant. If the case concerns unfair dismissal, the claimant can call witnesses to give evidence. The judge, the members of the tribunal, and the respondent will ask the complainant questions.[30]. The tribunal can order for costs if it believes that the claimant or their representative has acted disruptively in consulting the case. The judges also have the power to order a party to cover costs incurred by witnesses who appear in the case’s hearing. Suppose the claim concerns a breach of contract, the employment tribunal issues awards to the sum of 25 000 Euros. If the claimant is seeking higher compensation, they must approach the High Court.
If the claimant wins the case
If the claimant wins, the tribunal can order the losing party to perform certain things such as; paying the compensation, paying the witnesses, improving the working environment, or giving the claimant their job back. The compensation will depend on the type of claim, the amount of money the claimant has lost due to the respondent’s actions, or the claimant’s age, salary, or length of service.[31]. If the respondent fails to pay, the claimant can approach the court, forcing them to pay. However, the claimant can only force the respondent to pay where they have no appealed. If the claimant loses the case, they can still appeal to the Employment Appeal Tribunal.
Other points the client should be aware.
In the UK, workers are entitled to employment rights which include; getting the National Minimum Wage. The law also protects employees against unlawful deductions from their earnings and prescribes minimum says for rest and paid holiday. Employees should not work more than 48 hours on average per week even when working from home due to the restrictions in place for the COVID-19 pandemic. The client must be aware that the Equality Act 2010 protects them from all forms of discrimination at work. an
Moreover, the client must be aware that if her claim concerns discrimination, she can receive expert information on discrimination covering England and Wales from the Equality Advisory and Support Service (EASS)[32].
Disclosure
The client must be aware that if her employment ended and she has received another job offer, she must disclose in the claim. She must also disclose when she will start the new job and whether it is permanent or temporary. In this case, Onyin must state that she has been offered a new job with one of the former clients, a hotel chain, and she is set to start on 1st June 2021. Moreover, she must indicate that she will earn a gross salary of 48,000 euros at the new job.
Unfair dismissal
If the claimants claim unfair dismissal, she must explain in detail the background leading to the dismissal and provide any other meaningful information.[33]. She can also state the reasons she disagrees with the dismissal. Onyin must include dates, times, and the people involved in her dismissal.
Discrimination
Discrimination laws cater to all sectors of employment, including training, hiring, and dismissal. Occurrences that happened after her dismissal can also be covered by discrimination. She can describe the incidences she felt amounted to discrimination and the date they occurred.[34]. Onyin can also explain how she was affected by the discrimination incidences. The judge can award compensation for discrimination cases for injury to feelings, upset, and distress caused by specific incidences of discrimination. In some extreme cases, the judge can award compensation if the complainant proves, with medical evidence, that she got ill due to the discrimination.[35]. However, the tribunal will award compensation in a just and equitable manner after considering the case’s circumstances.
[1] Siti Fazilah, Ali Mohamad & Zaraini Abdul, ‘Monetary Compensation for Unfair Dismissal: A Comparative Study in the UK and Malaysia’ (2019) Vol. 27 No. 2 IIUMLJ 447-448
[2] Collins P, ‘Inadequate Protection of Human Rights in Unfair Dismissal Law’ (2018) ILJ http://hdl.handle.net/10871/35119 accessed on 10th March 2021
[3] Employment Rights Act 1996, section 98(1)
[4] Ibid
[5] Employment Rights Act 1996, section 94(1)
[6] T420, ‘Making a Claim to an Employment Tribunal
[7] Hugh Collins, ‘Justice in Dismissal: The law of Termination of Employment (1992) Oxford University Press 272
[8] Section 98(2)
[9] [1988] UKHL 8
[10] Employment Rights Act 1996, section 86
[11] International Convention on the Elimination of all Forms of Racial Discrimination, Article 1
[12] Stephanie Wallace, James Nazroo, Laia Becares, ‘Cumulative Effect of Racial Discrimination on the Mental Health of Ethnic Minorities in the UK,’ (2016) Vol. 106 No.7 AJPH
[13] Hannah, Suzanne & Adam, ‘Race, Ethnicity & Equality in UK History: A Report And Resource for Change’ (2018) RHS
[14] Hannah, Suzanne & Adam, ‘Race, Ethnicity & Equality in UK History: A Report And Resource for Change’ (2018) RHS
[15] Article 14
[16] [2017] UKET 2300394/2016
[17] Section 113
[18] Employment Rights Act, section 114
[19] Employment Rights Act, section 115
[20] Employment Rights Act, section 117
[21] Employment Rights Act, section 118 (a) (b)
[22] Employment Rights Act, section 119
[23] Employment Rights Act, section 123
[24]Dix, G., & Barber, B. (2015). The changing face of work: Insights from Acas. Employee Relations.
[25] Busby, N., & McDermont, M. (2016). Access to justice in the employment tribunal: Private disputes or public concerns. Access to Justice: Beyond the Policies and Politics of Austerity. London: Hart.
[26] Cruz, K., Hardy, K., & Sanders, T. (2017). False Self‐Employment, Autonomy and Regulating for Decent Work: Improving Working Conditions in the UK Stripping Industry. British Journal of Industrial Relations, 55(2), 274-294.
[27] Chung, H. (2018). Gender, flexibility stigma, and the perceived negative consequences of flexible working in the UK. Social Indicators Research, 1-25.
[28] Dix, G., & Boyce, G. (2016). Acas. In Encyclopedia of Human Resource Management. Edward Elgar Publishing Limited.
[29] Kirk, E., McDermont, M., & Busby, N. (2015). Employment tribunal claims: debunking the myths. PolicyBristol Policy Report, 1, 2015.
[30] Lane, J. A., & Ingleby, R. (2018). Indirect discrimination, justification, and proportionality: are UK claimants at a disadvantage?. Industrial Law Journal, 47(4), 531-552.
[31] Rose, E., Wood, L., & Kirk, E. (2015). The Impact of Employment Tribunal Fees: A Perspective from Citizens Advice Advisers in Scotland.
[32] Bleijenbergh, I., & Van Engen, M. (2015). Participatory modeling to support gender equality. Equality, Diversity, and Inclusion: An International Journal.
[33] Davidov, G., & Eshet, E. (2015). Intermediate approaches to unfair dismissal protection. Industrial Law Journal, 44(2), 167-193.
[34] Cheung, H. K., King, E., Lindsey, A., Membere, A., Markell, H. M., & Kilcullen, M. (2016). Understanding and reducing workplace discrimination. Research in personnel and human resources management.
[35] Jones, K. P., Arena, D. F., Nittrouer, C. L., Alonso, N. M., & Lindsey, A. P. (2017). Subtle discrimination in the workplace: A vicious cycle. Industrial and Organizational Psychology, 10(1), 51-76.