At Jackson Boyd we regularly advise clients, both employees and employers, on all areas of employment law. However, a lot of the time we find prospective clients misunderstand the types of claims available to them. For example, just because an individual has been dismissed and that dismissal could be described as ‘unfair’ legally speaking there might be no valid claim. With this in mind, we’ve given a brief overview of some of claims we frequently advise on. Please see our separate page for information relating to Whistleblowing.
With all the below it is important to remember there are strict time limits for bringing employment claims and as such it is important that you seek advice from a solicitor at the earliest opportunity.
In Scotland (along with the rest of the UK), employees only get protection from unfair dismissal if they meet the qualifying period, which is 2 years/103 weeks continual service. If an employee has been employed for less than the qualifying period they cannot claim for unfair dismissal. The only exception to this is if the dismissal relates to an ‘automatically unfair’ reason or discrimination.
Examples of ‘automatically unfair’ dismissals include, but are not limited to, if you’re dismissed because you are pregnant or on maternity leave or have asked about your legal rights at work, such as the right to be paid the minimum wage.
To prove your dismissal linked to discrimination you would need to show the discrimination was based on one or more of the protected characteristics. The protected characteristics are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.
This is when an employee terminates their employment (with or without notice) as a direct result of fundamental breach of contract by the employer. Legally speaking, in this situation the employee is classed as dismissed. The onus then falls on the employee to prove the breach was so serious it resulted in the contract being terminated. Statistically speaking, the success rate for constructive dismissal cases is very low (<10%). This is due to the difficulty in proving such a serious and fundamental breach.
Crucially, a common misconception is that individuals can claim constructive dismissal if they have an alternative offer of employment. You cannot claim constructive dismissal if you resign with an alternative offer of employment or have actively looked for alternative employment.
Unfortunately, we frequently speak to individuals who are being bullied or mistreated at work. Understandably, this creates an uncomfortable working environment that many believe they can claim for. Common examples include being shouted at or talked down by a manager/colleague. The key element in assessing whether a valid claim exists is whether the treatment amounts to bullying or harassment.
- Offensive, intimidating, malicious or insulting behaviour; and
- An abuse of misuse of power that undermines, humiliates, denigrates or injures the recipient (emotionally or physically).
- “Unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.”
- As noted above, the protected characteristics are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.
In summary, unless bullying amounts to conduct defined as harassment in the Equality Act 2010 it is not possible to make a complaint to an Employment Tribunal about it. This is frustrating for many individuals we speak to but unfortunately, the treatment must be linked to one of the above protected characteristics.
Victimisation is very closely linked with bullying/harassment. In simple terms, it is not enough for an individual to say they feel personally victimised at work be it, as above, from the behaviour of managers or colleagues. Legally, victimisation is when someone is treated badly because they have done a ‘protected act’.
A ‘protected act’ is:
- Making a claim or complaint of discrimination under the Equality Act 2010 (the Act);
- Helping someone else to make a claim by giving evidence or information;
- Making an allegation that you or someone else has breached the Act; and
- Doing anything else in connection with the Act.
Breach of contract
Individuals frequently think because their contract has been altered that they can claim for breach of contract. Whilst this area can be more complex, in basic terms you cannot claim for breach of contract unless you have suffered a loss. This is because the purpose of an award of damages for breach of contract by an employer is to compensate the employee for loss suffered arising from the breach. Generally speaking, the rule is that the damages should (so far as a monetary award can) place the employee in the same position as if the contract had been performed in full.
If you are an employer or an employee and require advice in relation to any of the above areas please contact us online by clicking here or speak to a member of our specialist team on 0333 222 1855.