Constructive Dismissal and Discrimination

Employment Law and Constructive Dismissals

Constructive Dismissal

Constructive dismissal is when an employer acts in a way in which their ethic affects the work of their workers or a single worker on occasion. This could include changing the work environment or adding policies with the intent of attempting to get an employee to resign.

S.95 Employment Rights Act 1996 states that “the employee terminates the contract under which he is employed (with or without notice)”

Example

Andi works at M&S and she can only work 6 hours a day because she has to pick up her son from school. Andi’s management has asked Andi to work further hours and to become more involved with the team at work. Andi says this isn’t possible due to her personal obligations. Andi’s manager then adds a new policy which states the shortest shifts are now 8 hours. Andi has no choice but to resign.

In order for there to be constructive dismissal there are certain steps that need to be followed. The first step is that a person making the claim is must be a worker, and can be defined as an employee.

Definition of an Employee

“Employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.”.

This means that there needs to be

  • Some sort of contract between the worker and the employer.
  • This can be any contract such as a zero-hour contract, a weekend only, part time, full time or
  • Any other contractual agreement that can be shown on a contract and backed by either payslip’s, a P45 or a Bank statement.
  • A contract can also be verbal and can include expressed or implied terms.

Difference between Employees and Self-Employed

  • It is vital to determine the status of one’s employment, in terms of whether the person are employees or self-employed.
  • This is due to certain employment rights deriving from the person being an employee.

In order for to determine whether the person is an employee or self-employed depends on an assessment of what is required in law to be considered a worker. The types of workers starts with common law tests that have been developed by the courts for the purpose of identifying the existence of a contract of employment.

The three tests that can be used in order to determine whether a person is an employee or self-employed, these are;

  • The control test
  • The integration test
  • The multiple test

Control Test

  • This test enabled the courts to examine whether an employer (master as was known at that time) controlled or had any right to control the worker and the way in which the person carried out their job.

In the past, if an employer was able to tell and employee what to do and stipulate the way in which they carried out the job at hand, this would indicate there was in fact a contract of employment did exist. It was held that the less degree of control an employer had over individual indicated that that would amount to self-employment.

However, it became extremely difficult for the courts to apply this test when it involved a highly skilled job where it was deemed unrealistic that the employer could control and dictate the way in which the job was carried out.

Example:

An airline cannot control the way in which a pilot performs in their job when he or she is carrying out their job.

Though it is an important test, the control test is not a conclusive test to determine whether or not a person is an employee or self-employed.

Integration Test

  • The integration test was developed in a series of cases that involved hospitals that were liable for the acts of surgeons, radiographers and other specialists.
  • The decisive question for integration test was whether the person is employed as part of the business, and whether his or her work is done as ‘an integral part of the business’ or whether it is merely an accessory to the business.

Multiple Test

The courts have accepted that no one test can be conclusive when determining an employment status, therefore, the courts adopted the multiple test.

The multiple test is a threefold test that includes:

  1. A contract of service requires a duty to give personal service,
  2. The existence of a sufficient degree of control,
  3. Terms of the contract need to be consistent with the service

In order to establish the correct approach for establishing the status of a working relationship is to take into account a range of factors relevant to the relationship.

There will be a contract of service if these three conditions are fulfilled:

  • The person agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his employer.
  • He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master.
  • The other provisions of the contract are consistent with its being a contract of service.

Length of employment

The next step would be to look at the length of the employment. The Act looks at constructive dismissal and the period of time that the individual needs to have worked. For there to be a constructive dismissal, the employee would have had to work for the company for a period of at least two years.

  • Before April 6th, 2012 – the qualifying period will normally 1 year
  • On or after April 6th, 2012 – the qualifying period will normally 2 years

To issue a tribunal claim the employee would need to do this within three months of the day that they left.

What is Discrimination?

The Equality Act 2010 speaks of discrimination as two distinct concepts:

  • Direct and
  • Indirect discrimination.

Direct Discrimination

  • Direct discrimination cannot be justified under any circumstance.
  • Direct discrimination arises when an employer treats an employee differently or less favorably than another based on one or more of the protected characteristics.
  • The protected characteristics are:
  1. Age,
  2. Disability,
  3. Gender reassignment,
  4. Marriage and civil partnership,
  5. Pregnancy and maternity,
  6. Race,
  7. Religion or belief,
  8. Sex,
  9. Sexual orientation.

Example

If an employer chose to not hire, train or give the same opportunities as anyone else based on any of the characteristics above.

It would have to be shown that the employer chose to not give the same opportunities as the other employees based on this characteristic.

Example

A saleswoman informed her employer that you want to spend the rest of your life living as a man. As a result of this, she was moved to a role without client contact against her wishes.

Indirect Discrimination

“Person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.”

  • Indirect discrimination is when policies or rules conflict with an employee, but are not specifically aimed at or targeted at the individual because of their protected characteristics.
  • Indirect discrimination can be justified within reason.

Example

If there is a policy that prohibits the manifestation of a religious belief at the workplace, such as a headscarf, turban or a crucifix, it could be indirect discrimination. It would have to be shown that it is not personal.

Example

There’s a clause in your contract which says you may have to travel around the UK at short notice. It’s difficult for you to do this because you’re a woman with young children. This clause therefore places you at a particular disadvantage. It also places women generally at a disadvantage, as they’re more likely to be the carers of children.

Discrimination with Harassment

  • Harassment is a form of discrimination.
  • Harassment is regarded as any behaviour that is unwanted, behaviour in which the individual has found offensive or,
  • Behaviour that makes the individual feel humiliated or intimidated. Harassment can be by words, emails or gestures.

Victimisation with Harassment

Victimisation is when a person is treated badly or has been subjected to a detriment because they have made a complaint about discrimination or because they have helped someone who has been a victim of discrimination.

Public Sectors Duty

The public sector has a duty to ensure equality at the workplace this includes:

  • Eliminating discrimination,
  • Harassment,
  • Victimisation and
  • Any other conduct that is prohibited by or under this Act

Tattoos and Piercings

Some organisations may feel that tattoos and piercings are at odds with the image they are trying to project, therefore, the organisation may ask employees to remove piercings and to cover tattoos whilst they are in the workplace.

However, employers must carefully consider the reasoning behind imposing such a rule and there should be a legitimate reasoning for the rule.

Example

The reasoning could be a valid health and safety reasoning for example no jewelry to be worn in a food preparation factory because foreign bodies getting into the food or that dangling earrings could be caught in machinery.

Employers should also take into account and remember that all dress codes must apply to both men and women equally.

Age Discrimination

The Equality Act 2010 states that it is unlawful to discriminate against an individual based on their age. Age is one of the protected characteristics and is therefore protected from harm that could occur in the workplace.  

The employers should make sure that there are policies in place that protect the individuals when it comes to things such as:

  • recruitment
  • determining pay, and terms and conditions of employment
  • training and development
  • selection for promotion
  • discipline and grievances
  • countering bullying and harassment
  • when an employee is dismissed.

Age discrimination, is divided between four categories;

  1. Direct discrimination
  2. Indirect discrimination
  3. Harassment
  4. Victimisation

Direct Discrimination of Age and Association

Direct discrimination is broken down into three different kinds of discrimination of treating someone less favourably because of;

  • Their age (direct discrimination)
  • Their perceived age (direct discrimination by perception)
  • The age of someone with whom they associate with (direct discrimination by association).

Direct discrimination due to someone’s age is the only one of the three different types of direct discrimination that may be objectively justified by the law’s definition of ‘a proportionate means of achieving a legitimate aim’.

Indirect Discrimination in the Workplace

Indirect discrimination occurs in workplaces that set policies that would benefit some individuals but would be an impossible standard by others. An example would be if a company stated that they wanted at least 10 years’ work experience. This would be a disadvantage towards younger people who would be unable to achieve this.

Example

Alan was a 25 year old worker and had been at his current job for a perod of since he was 18. Alan knew the job role very well, and was the most trained person for the job and had the correct qualifications above everyone else that applied for the promotion. However, the requirements for the promoton were 10years experience needed. This would put Alan at a disadvanatge beause he had only 7 years experence. Therefore, Alan would be a victim of indirect discrimination.

Definition of Harassment

Harassment looks at the way in which the employer treats the employee. There could potentially be

Unwanted conduct which could make the individual feel like their dignity had been violated or they could feel that the environment that they are working in has an intimidating, degrading or humiliating environment which makes the individual feel uncomfortable.

Definition of Victimisation

This generally happens when an employee makes a complaint about a situation and is not treated fairly or as an equal due to their age.

Disability Discrimination

Discrimination because of disability is when a person with a disability is treated less favourably because you are disabled than someone without a disability would be treated in the same circumstances.

Discrimination regarding a disability can be either direct or indirect,

Example

If a child with Down syndrome went to watch a movie at the cinema with their family and they are not offered a seat on a higher level that required stairs to access like everyone else because of the child’s disability. This puts the child at an unfair disadvantage.

Example

An example of indirect discrimination would be if the individual was partially blind therefore, the eyesight is extremely impaired and was given an application form to read and fill out without someone there to help them read and fill out the form. Due to the lack of reasonable adjustments the individual was not successful based on the unanswered application.

‘Discrimination Arising from Disability’

This is when an individual is treated less favourably because of something that connects to their disability. An example would be that the individual may need a wheelchair to get to work but there is no wheelchair ramp.

Reasonable Adjustments

It is also unlawful to not make reasonable adjustments at the workplace for the individual each workplace has a duty to make reasonable adjustments.

  • Reasonable adjustments are put into place to give the employee with a disability an equality within the work force.
  • This enables the company to help the person with a disability have the same advantages as employees that have no disability.

Harassment of Person with a Disability

It is also unlawful to harass someone due to a disability. This could be making jokes or saying offensive things. It would also be discrimination if an individual victimises another because they acted due to previous discrimination.

  • If an employer doesn’t make reasonable adjustments in the workplace it would also be discrimination if they don’t have access to goods, facilities or services.

Wages:

The legal minimum wage in the UK is:

YEAR

25 AND OVER

21 TO 24

18 TO 20

UNDER 18

APPRENTICE

2017

£7.50

£7.05

£5.60

£4.05

£3.50

2016

£7.20

£6.95

£5.55

£4.00

£3.40

2015

£6.70

£6.70

£5.30

£3.87

£3.30

2014

£6.50

£6.50

£5.13

£3.79

£2.73

2013

£6.31

£6.31

£5.03

£3.72

£2.68

2012

£6.19

£6.19

£4.98

£3.68

£2.65

2011

£6.08

£6.08

£4.98

£3.68

£2.60

2010

£5.93

£5.93

£4.92

£3.64

£2.50

Disclaimer

While every effort has been made to ensure the accuracy of the information provided in this article, it does not constitute legal advice and cannot be relied upon as such. Each legal case and issue may have unique facts and circumstances, as a result legalally does not accept any responsibility for liabilities arising as a result of reliance upon the information provided. For further help and guidance, you can always rely on and seek advice from our experienced lawyers.

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