Common Employment Claims & How To Avoid Them

This article will explain common employment claims and general tips for employers on how to avoid these claims being brought against them In practice. The majority of claims that we see relate to:- 

• Discrimination  
• Unfair dismissal  
• Wrongful dismissal
• Unlawful deduction of wages 

Unfair Dismissal 

These claims are often referred to as a ‘statutory claim.’ To be eligible to bring about such a claim, an employee must be able to satisfy strict eligibility requirements. These being, the employee must be dismissed and the employee must have had continuous employment with the employer of at least two years on the date of effective termination of employment. This date is referred to as the effective date of termination (ETD) in the tribunal. 

In defending these claims, the employer must establish that the reason for dismissal was a fair one and that it relates to one of the following 5 reasons for dismissal as stated in section 98 of the Employment Rights Act and below:- 

1. relating to the capability or qualifications of the employee to do work of the kind which he was employed to do; or
2. relating to the conduct of the employee; or
3. that the employee was redundant; or
4. that the employee could not continue to work in the position held without contravening some statutory provision; or
5. there was some other substantial reason that could justify the dismissal of an employee holding the position that employee held. 

Whilst the burden is on the employer to prove that the dismissal was fair, as long as the employer can establish that the dismissal related to one of the above reasons then this burden is not too heavy to discharge. 

You should ensure that before proceeding to dismiss a protected employee you strictly follow both your own procedures and the procedures set out by ACAS. ACAS procedures set out the minimum standard required. Ensure that you are as open with your employee as you can be and if you are unable to be open explain to your employee the reasons why you are unable to. 

Wrongful Dismissal 

These claims are common law contractual claims for breach of contract based solely on dismissal. Unlike the above claim, as this is not a statutory claim. The same eligibility requirements for Unfair Dismissal do not apply and a claim can be brought to the tribunal as long as the time limits for bringing the claim have not passed. These being 3 months of dismissal for a trial at the employment tribunal, and 6 years of dismissal in respect of the civil court. This claim applies where an employee has a claim for damages against their employer where the employer has dismissed them in breach of the employment contract. The only remedy the employee will gain from this claim is compensation considering loss of net wages, accrued holiday pay and additional losses related solely to the contract of employment, the court will only award pecuniary losses. 

Ensure that you carefully check your employees contract of employment before making any dismissal. Ensure that you are aware of what notice they are entitled to (and do not forget to check any statutory notice in case your employment contract does not provide enough). Remember that even when employees are being dismissed they are still entitled to notice pay (unless the reason for the dismissal is gross misconduct), holiday pay and any other benefits they usually receive under their contract. 

Discrimination 

Discrimination claims occur when an employee is treated less favourably owing to a protected characteristic. The protected characteristics are:- 

1. Age
2. Sex 
3. Disability
4. Religion or belief
5. Gender reassignment 
6. Being married or in a civil partnership 
7. Being pregnant or on maternity leave
8. Race including colour, nationality, ethnic or national origin. Discrimination can either be direct, indirect, harassment or victimisation and for further information in relation to the same please see our article relating to discrimination.

Take complaints of discrimination seriously and deal with them as quickly and as thoroughly as possible. Speak with the complainant to keep them updated on the progress of any investigation and ensure that they feel supported. 

Unlawful deduction of wages 

Unlawful deduction of wages occurs when an employee is not paid the wages that they are due and the employer has no right to make deductions. Sometimes, contracts contain rights for employers to make deductions to employees wages under certain circumstances. These can include when the employee owes the employer money or in relation to training costs. If an employer does not have a contractual right to make deductions from wages then they are unable to do so without the consent of the employee. 

In the first instance, seek with your employee to see why they consider there has been an unlawful deduction to their wages. Consult their contract and if you do not have the power to deduct from their wages ensure that you pay your employee the amount that they should have been paid. You should then seek to reach an agreement with them in relation to any funds that you consider should have been deducted. 

General advice for all cases 

If issues arise in employment, it is always best to try and resolve these informally in the first instance. Speak with your employees to see if you can work together to resolve any issues rather than relying on formal procedures straight away. If the matter cannot be resolved informally then you should take more formal action. 

Most employment cases occur not because of what an employer has done, but the way that the employer has done it. Try to be as open with your employees as you can and try to resolve all issues informally in the first instance. Be clear on the procedures that should be followed in order that you can explain them to your employee.