Equal pay questionnaire   Are you being paid enough?

Unfair dismissal   

Wrongful dismissal   

Constructive dismissal   

Equal pay questionnaire

Women or men who suspect that they are being paid less than colleagues of the opposite sex doing the same or similar work will now be able to submit a questionnaire to their employers. Employers will be expected to reply within eight weeks but are not obliged to do so.

The questionnaire gives employees the right to request pay information on a comparable workers of the opposite sex. Employers are not compelled to use them but those that refuse requests from employees are likely to be penalised if taken to employment tribunal.

Under Section 7B of the Equal Pay Act 1970 a person is entitled to write to his or her employer asking for information that will help establish whether he or she has received equal pay and, if not, what the reasons are.

The purpose of the Equal Pay Act is to eliminate discrimination between women and men in the same employment in pay and other terms and conditions of their contracts of employment such as piecework, output and bonus payments, holidays and sick leave. However, the concept of pay also includes redundancy payments, travel concessions, employers’ pension contributions and occupational pension benefits as well.

The Act provides for equal pay between women and men in the same employment by giving a woman (but this applies equally to a man) the right to equality in the terms of her contract of employment when she is employed:

• on like work to that of a man - that is, work of the same or a broadly similar nature to the man’s
• on work rated as equivalent to that of a man - that is, in a job which a job evaluation study of part or all of her employer’s workforce has shown to have an equal value to the man’s
• on work of equal value to that of a man - that is, in a job which is equal in value to the man’s terms of the demands made on her under such headings as effort, skill and decision-making.

The employment act has introduced a right for employees to request key information from their employers to establish whether they are receiving equal pay and if not reasons why. It is proposed that employers can refuse to provide information but in these circumstances, Tribunals can draw inferences from such a refusal. Tribunals can request disclosure of this information if, after weighing up the need for confidentiality of the work colleagues against the importance to a case where an employee believes they are earning unequal pay.

The equal pay questionnaire applies equally to men and women but only allows employees to request this information of opposite sex employees and not of employees of the same sex.

Department of Trade and Industry Secretary, Patricia Hewitt, has said that if employers ignore equal pay questionnaires or refuse to carry out voluntary pay reviews she would consider compulsory pay audits.

For more information on the Equal Pay Act and Job Evaluation Schemes please contact us on 01473 890882

The questionnaire can be viewed at the Women and Equality Unit website.

Unfair dismissal

So often employers wish they could just come out with "you’re fired", march the employee to the door and hope that that’s the end of their problems. There are many that still do, especially when all the evidence suggests that the employee is ‘guilty’, and end up at a tribunal.

Any claim for unfair dismissal must go through a two-stage test.

1. Was the dismissal for a fair reason?

And if the dismissal was for a fair reason and that the employer behaved reasonably.

2. Was the dismissal dealt with fairly?

This means that an employer can dismiss an employee for a perfectly valid reason, but the way in which it was handled was unfair and so an unfair dismissal claim can be made.

Reasons for dismissal

The following is a list of fair reasons for dismissing an employee and points that an Employment Tribunal will consider

• Capability
• Conduct
• Redundancy
• Breaking the law
• Any other reason

1. Capability

This is split into several areas.

2. Conduct

Here are some of the possible situations where an employee’s conduct may have given the employer grounds for dismissal:

• Theft or corruption, including taking bribes
• Being drunk at work
• Taking drugs at work
• Abusive behaviour
• Leaking confidential documents or information
• Inappropriate use of the Company’s Internet and e-mail system
• Being absent from work on a regular basis
• Constantly late for work
• Unsuitable work clothes or appearance
• Taking holidays without informing your employer or not following the Company’s holiday procedure.
• Unsuitable conduct with other members of staff during office hours
• Unsuitable conduct outside work hours that has an impact on the employee's job
• Even telling your employer exactly what you think of them

All of the above may be persistent behaviour for which an employee has received earlier warnings or they may be individual incidents that are of a serious nature. The tribunal will also consider the following:

a) Was the conduct of the employee looked into thoroughly?

b) Did the employer believe that the employee committed the offence? The employer does not need absolute proof in a case of dishonesty, but there must be strong evidence of dishonesty for them to dismiss the employee.

3. Redundancy

The employer must have a fair procedure for selecting who is going to be made redundant. Once the method has been decided upon, the employer must stick to it. One of the most commonly used methods is 'last in - first out'. An employer cannot select an employee for redundancy if it is based upon one of the unfair dismissal exceptions.

4. Breaking the law

For example, a foreign worker whose work permit has expired. To continue to employ them would break immigration law. However, the employer should check whether the situation can be made legal before dismissing the employee.

5. Any other reason

This is very wide and is used to cover virtually every other possible reason. For example, where a business is being reorganised and some employees refuse to reorganise along with it or where they are no longer considered suitable. For example, an employee who refused to use computers when they were installed, despite being offered training, was dismissed. This was considered a valid reason to dismiss. This section can also include dismissing an employee because an important client demands it.

Fairness of Procedure

The test here is whether the employer used a fair procedure and was it reasonable for the employer to finally decide to dismiss the employee once the procedure had been carried out.

Any Employment Tribunal would consider some of the following:

1. Was the employee given a fair hearing by the employer?
2. What evidence was used at the hearing and was it all used?
3. Did the employee have a representative at the hearing or a Trade Union official?
4. If there was more than one employee involved were they all treated in the same way?
5. Had the employee done this before?
6. Did the employer consider warnings? Were these used in the past?
7. Did the employer consider the overall performance of the employee? For example, did the employee previously have a long record of good work and behavior?
8. Could the employer have disciplined the employee instead of dismissing them?
9. Did the employee have an effective right of appeal against the decision?
10. Was the whole procedure carried out in the same way as previous procedures? If not, how did it differ and why?

Wrongful dismissal

Employer do not always realise when they have breached their contract of employment with the employee – whether that contract is implied or explicit. Either way it is important for employers to understand the type of things that may be considered as breach of contract and consequently a claim for wrongful dismissal could be brought against them.

Wrongful Dismissal should not be confused with Unfair Dismissal. Because Wrongful Dismissal is based on contract law, any claim under it means looking at the employee’s employment contract to see if the employer has broken the contract.

The most common breach is where the employee is dismissed without notice or the notice given is too short. Obviously, either party can end the employment relationship if they give the necessary notice. This will either be the legal minimum or what is stated in the employee’s contract. However, the employer can justify dismissing the employee without notice (Summary Dismissal) if the employee commits a serious breach of the contract, for example theft. The employer does not have to have proof of the theft, suspicion is enough and provided a fair procedure is followed.

Another example of Wrongful Dismissal is a failure by the employer to follow a contractual disciplinary procedure.

Wrongful Dismissal claims can be brought in the Employment Tribunal, county court or High Court depending on the value of the claim.

An employee can bring a claim for both Unfair and Wrongful dismissal. However, any money received under one will cancel out the same amount received under the other claim. This is to stop the employee receiving double compensation.

Constructive dismissal

A tribunal may rule that an employee who resigns because of conduct by his or her employer has been 'constructively dismissed' For example, the employer has made the employee’s life very difficult and the employee feels that they cannot remain in their job. When this happens the employee’s resignation is treated as an actual dismissal by the employer, so the employee can claim Unfair Dismissal. The employer's actions must have amounted to a fundamental breach of contract.

This is where the employee leaves their job due to the employer’s behaviour. For example, the employer has made the employee’s life very difficult and the employee feels that they cannot remain in their job. When this happens the employee’s resignation is treated as an actual dismissal by the employer, so the employee can claim unfair dismissal. The employer's actions must have amounted to a fundamental breach of contract.

Constructive dismissal is based on the Employment Rights Act 1996 s 95(1) (re-enacting the Employment Protection (Consolidation) Act s 55(2)), which gives, as the third definition of dismissal:

"(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct."

Examples of Constructive Dismissal can include:

1. The employer not supporting managers in difficult work situations
2. Harassing or humiliating staff, particularly in front of other less senior staff
3. Victimising or targeting particular members of staff
4. Changing the employee’s job content or terms without consultation
5. Making a significant change in the employee’s job location at short notice
6. Falsely accusing an employee of misconduct such as theft or of being incapable of carrying out their job
7. Excessive demotion or disciplining of employees

An employee can resign over one serious incident or due to the build up of a number of incidents. However, the employee must resign soon after the incident in order to be able to rely upon it. Generally, the actions of the employer must be a serious breach of contract.

An employee being constructively dismissed only proves that they were dismissed, it does not automatically prove that the dismissal was unfair. The employee has to go on and prove that the dismissal was also unfair.

If the Constructive dismissal is connected to one of the Unfair Dismissal Exceptions it will be simple to prove that it was unfair.

If in doubt seek professional advice by calling Picasso HR on 01473 890037

The information in this newsletter is of a general nature and is not a substitute for professional advice. You are recommended to obtain specific professional advice before you take any action.

For further information, advice or assistance on any of the matters raised in this newsletter please contact Picasso HR on 01473 890037.

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