What is discrimination?
Discrimination can be broadly defined as the act of treating a person in a less favourable manner than others because of a “protected characteristic” they possess. A protected characteristic can include a person’s race, gender, age, sexual orientation, disability, marriage and civil partnership, gender reassignment, pregnancy/maternity status or religious belief.
The law against discrimination is set out by The Equality Act 2010, which also considers harassment to be a form of discrimination because it constitutes ‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating and intimidating, hostile, degrading, humiliating or offensive environment for that individual’.
How long do I have to bring a claim?
The majority of discrimination cases must be submitted to the Employment Tribunal within 3 months (less one day) from the effective date that the discriminatory conduct occurred. This can also be from the date when the worker’s employment was terminated should their complaint involve unfair dismissal.
In certain cases the Tribunal can extend this time period if it is appropriate, such as in instances that relate to a discrimination claim in which the nature of the conduct is ongoing. However, claims of unfair dismissal are more difficult to get extended times for.
1. Who can claim unfair dismissal?
Generally an employee can claim unfair dismissal but self-employed workers cannot. Contract workers, agency workers, casual workers, volunteers and those who are working on a freelance basis may be able show that they were an employee at the relevant time.
2. Is there an upper age limit for claiming unfair dismissal?
No. The simple answer is that there is no upper age limit.
3. Is there a requirement for length of service?
Yes, an employee must have worked for his/her employer for at least 2 years continuously before they become eligible for issuing a claim for unfair dismissal. However, there are circumstances where the employee does not need to have worked for 2 years. These circumstances can occur because the employee was dismissed for one or more of the following reasons:
a. for issues involving pregnancy and maternity, and/or asserting other family entitlement(s);
b. being employed for flexible working or part-time working, or because he/she asserted fixed-term employee rights;
c. being an agency worker and asserting his/her right(s);
d. asserting a statutory right (i.e. rights guaranteed to employees);
e. issues relating to health and safety;
g. joining a trade union and taking part in trade union related activities or refusing to do so;
h. exercising his/her right to be accompanied in disciplinary proceedings and grievances;
i. failing to declare ‘spent’ conviction(s)
j. issues relating to pay, working hours, annual leave, working time, tax credits and the National Minimum Wage;
k. jury service;
l. issues relating to discrimination and victimisation (e.g. raising these issues or assisting another employee in doing so);
m. Sunday trading;
n. issues relating to retirement (where procedure not followed correctly).
4. If I have resigned can I claim unfair dismissal?
It depends. If you have been forced to resign or you resigned because you genuinely believed that your employer was in fundamental breach of your contract then you may be able to claim constructive unfair dismissal.
5. How long before I can bring a claim for unfair dismissal?
You can bring an unfair dismissal case forward as soon as you are able after the dismissal has taken place. In any event, you must bring your claim within 3 months after the day you actually last worked for your employer. The 3 months time-limit is enforced strictly but there are exceptions and these are rare. It is best to seek advice as soon as possible otherwise your claim may be too late to issue.
6. What do I need to do to present my case as fully as possible?
Keep a record of all relevant employment documents which could include, but are not necessarily limited to, the following:
a. Your contract(s) and any accompanying document given to you at the time of signing your contract;
b. record of any disciplinary and/or grievance raised in the past;
c. past pay-slips;
d. any memos, notes, letters and written instructions given by your employer;
e. copies of emails/messages which you believe are relevant;
f. if you have been sick then present records of your sickness along with any medical report(s);
g. copies of any agreement you signed at the time of being dismissed or or soon after being dismissed by your employer (you should seek independent legal advice before signing any such document as it may restrict your rights in the future).
7. What is the test applied by the tribunal?
It is for the employer to show the real reason for the dismissal. The following are potentially fair reasons for dismissal:
a. it relates to the employee’s conduct;
b. it is a genuine redundancy situation;
c. the employee could not continue to work without breaching an enactment;
d. some other substantial reason justifying the dismissal.
The employment tribunal will then consider whether in light of the reason shown by the employer it was reasonable for the employer to dismiss the employee.
If the employer could prove one of the fair reasons for dismissal shown above and/or if the employment tribunal concludes that it was unreasonable to dismiss the employee then the dismissal of the employee will be declared unfair.
8. What remedy will be awarded if I win my case?
The employment tribunal could ask the employer to re-engage or re-instate the employee, although this only happens in rare cases.
The tribunal can also award monetary compensation depending on the employee’s age, length of service and gross weekly pay.
9. What about the costs of bringing my claim in the employment tribunal?
The employment tribunal may order for costs but there is no general rule that the losing party will be made to pay costs. The tribunal will look at the claim as a whole including but not limited to the reasons for the claim being brought, the merits of the claim and the manner in which it was conducted by the respective parties. In light of these factors the tribunal may make a costs order on percentage basis.