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Employment Q&A

What is Early Conciliation?

In the vast majority of cases, before you can proceed to lodge a claim with the Employment Tribunal, you must notify ACAS of your intention to do so.  ACAS will then offer the opportunity to use Early Conciliation.  This is a process designed to enable the parties to settle their workplace dispute without going to tribunal.  Reaching a settlement through conciliation is quicker, cheaper and less stressful for all concerned than a tribunal hearing.

The process involves submitting a form (Early Conciliation Notification Form) which is a very simple process by which you confirm the brief details of the dispute and the name of the employer.  ACAS will then contact you to go through the information provided and explain the process.  They will then contact your employer to see if they wish to engage in conciliation.  If the matter is resolved, ACAS will deal with the necessary forms for you to sign.  If the matter is not resolved, ACAS will then issue  a certificate which then allows you  to lodge a claim in the Employment Tribunal.

What is a Grievance?

Put simply, a grievance is a complaint. If you are having a problem at work (for example, you are unhappy with something you have been asked to do as part of your job), you are concerned about an issue that has arisen at work (for example, the terms of your contract of employment have been changed) or you wish to make a complaint about a colleague or a manager (for example, you feel you are being bullied by a colleague or a manager) then you can raise a “grievance”.

Raising a grievance is putting your problem, concern or complaint to your employer informally at first (by perhaps having a private word) or if that fails, more formally, perhaps in writing which will allow them to investigate and hopefully resolve your complaint.

View our basic grievance flowchart which shows you how the grievance procedure should be conducted.

What is Disciplinary Action?

If your employer is concerned or unhappy about your work, they may look to take disciplinary action against you. Examples of possible concerns include: the standard of your work, your behaviour at work and your level of absence from work.

Your employer is not obliged to discuss matters with you informally. Instead, they may decide to take disciplinary action formally, especially if the matter is serious.

If your employer decides to take disciplinary action, they should set out in a letter the alleged misconduct or poor performance and the possible consequences you may face.

View our basic disciplinary flowchart which shows you how the grievance procedure should be conducted.

What is Unfair Dismissal?

Unfair Dismissal occurs when your employer dismisses you for an unfair reason and/or they do not follow the correct procedure for the dismissal.

A Claim for Unfair Dismissal must be submitted to an Employment Tribunal within three months/less one day from the effective date of termination of the employment (usually the date of leaving the job).

Your dismissal may be deemed as “fair” if it was for one of the following reasons:

  • Conduct
  • Capability or qualifications for the job
  • Redundancy
  • Illegality
  • Some other substantial reason of a kind which justifies your dismissal

If your Employer is going to dismiss you they should:

  • Advise you that they are commencing a procedure that may culminate in your dismissal
  • Invite you to a meeting and inform you of their decision
  • Allow you the right to appeal your dismissal

To have an Unfair Dismissal claim, you need to consider:

  • Have you been employed for 2 years? - If not, you cannot make a claim for Unfair Dismissal unless one of the statutory exceptions applies.
  • Was there a fair reason for your dismissal?
  • Was it reasonable for your employer to dismiss you?
  • Was a fair procedure followed?

What is Constructive Dismissal?

Constructive Dismissal is where your employer has acted in such a way towards you that it breaches your contract and allows you to leave your job and treat yourself as dismissed. Whilst your employer has not actually fired you, they may have forced your employment to come to an end by their behaviour. If the contract has been brought to an end, you will not be required to work your notice. An example of this would be where your employer persistently bullies you and forces you to leave the job. A Constructive Dismissal Claim may either be brought about by one particular incident or it may be a series of incidents culminating in a ‘last straw'.

Remember, Constructive Dismissal is not always easy to prove and it is important you consider your position very carefully before leaving your job. To prove Constructive Dismissal you need to show that your employer’s actions were sufficiently serious to allow you to leave your job. It is not necessarily enough that you consider that your employer has acted unreasonably.

A claim for Constructive Dismissal must be submitted to an Employment Tribunal within three months less a day of the date of your resignation.

You should generally try and raise a grievance with your employer before resigning to give them the opportunity of trying to resolve the problem. A failure to do this could reduce any compensation that you recover by up to 25%.

To have a Constructive Dismissal claim, you need to consider:

  • Have you been employed for 2 years?
  • Has your employer broken an express term of your contract?
  • Has your employer acted in a way calculated or likely to break down your relationship of mutual trust and confidence?

What is Wrongful Dismissal?

Wrongful Dismissal occurs when your employer breaches the terms of your employment contract by dismissing you. For example, by not giving you the required notice period. Your employer may be entitled to dismiss you without notice if they can show that the reason for your dismissal was gross misconduct.

You can issue such proceedings in an Employment Tribunal. However there is a cap on the amount of compensation that can be recovered; currently this is £25,000. Therefore it may be better to bring a civil claim in the County Courts for breach of contract, depending on the size of your claim. Please note that if you are bringing proceedings in the County Court, there will be a court fee to pay and this will be dependent on the size of your claim.

What is Discrimination?

Discrimination can be either direct or indirect.

The concept of direct discrimination, victimisation and harassment applies to discrimination related to gender, being married or having a civil partner, race, religion or belief, sexual orientation, age and disability.

You are eligible to make a claim for discrimination if you are a job applicant, apprentice, employee, former employee, contract worker, or working on a contract personally to execute work.

There is no minimum length of service required.

To be successful in a claim for Direct Discrimination, you must be able to show that:

  • You received less favourable treatment because of a protected characteristic, for example, race or age, etc.
  • The treatment was different to others. It is not enough to be simply unfair treatment, you have to show that the treatment was a result of one of the factors noted above.
  • You have a comparator. It is useful (but not essential) to find a real-life comparator.

Indirect discrimination is where your employer has applied a provision/criteria or practice which disadvantages you and which would tend to disadvantage others of your race, sex, age, etc. It is not unlawful if your employer can justify the provision or practice by showing that it is a proportionate means of achieving a legitimate aim.

Can I make a Claim against my Employer?

This will depend on the type of claim that you want to make and whether you are still “in time” to bring a claim.

The majority of employment claims are brought in the Employment Tribunal, although certain claims can also be brought in the County Court. Examples of potential claims that can be brought within the Tribunal system include:

Unfair Dismissal, Constructive Dismissal, Sex Discrimination, Disability Discrimination, Sexual Orientation Discrimination, Gender Assignment Discrimination, Race Discrimination, Religion or Belief Discrimination, Age Discrimination, Unpaid Wages, Equal Pay, Unpaid Redundancy Pay Claims, and Wrongful Dismissal. This is not an exhaustive list and there are also a number of other employment claims that can be brought in the Employment Tribunal, for example, TUPE claims, part-time worker regulations etc.

Do I have to make a claim in a certain time frame?

In most Employment Tribunal cases, there are strict three month/less one day time limits within which you can issue proceedings. These time limits usually begin to run from the termination date of your employment (unfair dismissal), date of your resignation (constructive dismissal) or from the incident of discrimination.

If you try and issue proceedings outside of this three month time limit, your claim will only be accepted in exceptional circumstances.

Exceptions to the three month time limit include cases regarding equal pay disputes and redundancy payment disputes when claims must be issued within six months.

Can I only make a claim at an Employment Tribunal?

You can also make employment claims in the County Court however these claims are limited to breach of contract only. If you issue a claim at the County Court you will have to pay a court fee, which is based on the value of your claim. Fees are now payable in the Employment Tribunal and the size of the fee depends upon the type of claim.

How long will my case take?

Unfortunately, there are no definite timeframes when bringing a claim in the Employment Tribunal. As a guide, the tribunal states that simple cases should be concluded within nine months of issuing proceedings. However, the time frame is often dependant on which part of the country your case is being heard and the type of claim.

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