Identifying cases with a legal aspect and trigger dates

PCS would always prefer to settle employment disputes and personal grievances by discussion and negotiation with an employer. However, we also have a duty to ensure that, if there is a potential legal case, the member’s rights to take legal action are safeguarded.

Generally, this means that personal cases that have a legal aspect need to be identified very early in the process of case handling, so that appropriate advice can be obtained on the prospects for a successful legal challenge and also so that any time limits can be identified and complied with.

Also from 29 July 2013, all applications to the Employment Tribunals in England Wales and Scotland have to be accompanied either by the payment of the appropriate fee or by a claim form for remission.

There is a separate system in operation at present for Northern Ireland – contact the Legal & Personal Case Unit for details.

The guidance below aims to assist reps in checking whether a personal case should trigger requests for legal advice and the identification of time limit points.

Employment tribunals

Employment tribunals (ETs) can only hear complaints about aspects of employment law for which they have authority. The most common sources of complaint are listed below.

Read a full list of their jurisdiction.

 

Civil Service Appeal Board

The government has abolished right for unfair dismissal claims to be referred to the CSAB.

The CSAB can still deal with appeals relating to:

  • The non-payment or the level of compensation to civil servants dismissed on inefficiency grounds. N.B. Such claims usually have to be lodged within 21 days of the date of dismissal
  • Refusal to allow participation in political activities
  • Forfeiture of superannuation.

For any such cases, contact your PCS HQ unit for guidance on how to progress the issues.

 

Cases that can be taken to ET

There is a possibility of a legal action being possible and, therefore, further advice should be sought, within the standard ET time limit period, which is usually within three months less one day in any of these cases:

Has the member been dismissed?

Dismissal cases are possibly the easiest ones to identify.

A member who has been dismissed can claim unfair dismissal at the ET. The CSAB can still look at any compensation awarded on dismissal, under the civil service compensation scheme and can increase the percentage awarded.

All dismissal cases have a time limit for lodging a claim of three months, less one day, from the date of dismissal. Where a member is dismissed with notice, the time limit for the ET does not start to run until their last day of service.

However, if they are dismissed with pay in lieu of notice, their effective date of dismissal runs from the last day that they are under their contract of employment. Ensure that you and they understand the correct final date.

If a member intends to claim that the decision to dismiss was in some way discriminatory, it may be that the time limit for the discrimination claim (see below) could start to run from the date of the decision to dismiss.

Similarly, if the member wants to rely on a failure to make reasonable adjustment under the Equality Act as being instrumental in leading to the decision to dismiss, this may also have an earlier trigger date.

In order to claim unfair dismissal, it is essential that the individual was employed for a minimum period of 12 months at the date of dismissal. If they commenced employment after 5 April 2012, they need 24 months of employment to be able to claim ordinary unfair dismissal.

There are some exceptions to this minimum service rule, at ET, if the claim is for an automatically unfair dismissal.

Is the member contemplating resignation?

In certain circumstances, an employee can resign and claim constructive dismissal. However, this is probably the hardest form of employment law case to win in front of a tribunal.

It is necessary to show that the employment contract had been destroyed through a ‘fundamental’ or ‘repudiatory’ breach by the employer. It is also then necessary to show that the constructive dismissal is unfair.

Unreasonable behaviour, if it is permitted by the employment contract, is not enough to justify a claim for constructive dismissal.

Members are strongly advised to seek legal advice before any such resignation. At the same time, however, it is important that any resignation takes place within a reasonable time period after the behaviour that is claimed to have destroyed the employment relationship.

Any significant delay may be interpreted as the employee accepting the employer’s conduct. So in such a case it may be worth seeking advice through one of the group officials who has access to the telephone advice system.

Claims for constructive dismissal are also claims for unfair dismissal and are covered by the same time limits for ET. There is also the same requirement that the individual has been employed for 12 months (or 24 months) at the date of resignation.

Is there a discrimination claim?

Currently, discrimination is prohibited on the basis of a range of reasons, including the following: age, gender, marital status, civil partnership status, gender reassignment, sexual orientation, disability, race (including colour and nationality), religion or belief, trade union activity, part-time working. Collectively these are known as protective characteristics.

There is additional protection within Northern Ireland relating to religious belief or political opinion, under the fair employment and treatment rules.

There are no minimum periods of employment necessary to claim discrimination. 
Discrimination can be found in various forms. The most common are:

Direct

Where the individual has been treated less favourably than someone without their protected characteristic and it is alleged that the reason for the different treatment is that characteristic.

Indirect

Where certain apparently neutral provisions disproportionately disadvantage workers with a particular characteristic. This can be difficult to identify.

Harassment

Where, for reasons linked to the protected characteristic, someone is subjected to unwanted conduct that has the purpose or effect of (a) violating the individual’s dignity and/or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual.

Victimisation

There is also a protection against being treated less favourably because you’ve taken a discrimination claim – or alleged that someone has broken discrimination laws. This protection also extends to witnesses and others who assist in a claim - for example the union rep.

For disabled people, there is also a legal requirement for employers to make ‘reasonable adjustments’.

Part-time workers have the right not to be treated less favourably than a full-time equivalent worker.

Discrimination claims are not always immediately obvious and reps are advised to look carefully at any circumstances where a member is claiming that they are being treated less favourably than other workers or where they feel that particular conditions of service or terms of employment apply less favourably to them than to others.

Complaints about longer term under-progression in career or promotion might also indicate a possible discrimination case.

Pay issues

The most common complaint is as a result of an over-payment, where the employer is seeking to recover this from the member’s salary.

Equal pay for work of equal value could also arise as an issue – though this is more frequently a collective issue, rather than an individual legal case.

Maternity and other family and carers rights

Legal issues can arise where members believe that they are being denied rights associated with maternity – leave, time off for ante natal classes, rights to return to work, or failures during maternity leave, such as to notify vacancies or promotion opportunities.

There are also rights to paternity and parental leave, adoptive leave, time off to deal with emergencies relating to dependents and rights to request part-time working.

Failures to allow time off

Trade union members and reps have certain legal rights to time off to attend union events or deal with union business. There is also a legal right to reasonable time off for certain public functions - such as acting as a magistrate, school governor, or local councillor.

Changes of terms and conditions

‘Breach of contract’ claims can be complex – not all terms and conditions of employment are incorporated into the contract of employment, and there are ways in which employers can legitimately change the terms of the contract of employment without breaking the law.

Any concerns relating to changes to terms and conditions will probably need legal advice.

Right to be accompanied

Workers have a right to be accompanied at certain grievance and disciplinary meetings. They also have a right to expect the employer to agree to alter the proposed date of a meeting, up to a maximum of five working days, to permit someone to accompany them. A failure by the employer to comply with this right can give rise to a claim to ET.

Terms and conditions at or following transfer (TUPE)

The Transfer of Undertakings (Protection of Employment) (TUPE) regulations establish a complex framework of protections for the employment, terms and conditions of those who are transferred between employers.

This is a complex area where legal advice will almost certainly be required.

Compromise agreements

Employers are alert to the risks inherent in any dismissal – including voluntary redundancy – and are likely to ask employees who are leaving to sign a compromise agreement. These are legally binding and usually exclude all rights to take action after the date of leaving, to cover a wide range of issues including employment law and personal injury claims.

It is a legal requirement of a compromise agreement, for it to be legally binding, that the person signing it must have had the benefit of independent legal advice to explain exactly what the individual is signing away rights to and, usually to ensure that they fully understand all the clauses that they are signing up to.

If a member approaches you for advice regarding a compromise agreement, you will need to refer the matter to your full time officer or bargaining area. PCS can provide the necessary service for independent legal advice via our solicitors. Costs are usually covered by the employer.

Trigger dates for time limits

Any cases that can be taken to an employment tribunal are strictly governed by time limits. This means that a complaint to the ET must be received by them within a certain period from the trigger date.

The trigger date is the date on which the event that is being complained about happened – so, in unfair dismissal cases it is usually the last day of service and, in discrimination cases, it is the date on which the act of discrimination was done.

In limited circumstances, particularly with discrimination cases, it is possible to argue that there is a continuing act of discrimination. In such cases, it is the last act of discrimination that causes the time limit to begin to run.

Reps need to remember, however, that what counts as ‘continuing discrimination’ is by no means certain and a tribunal may decide that a series of discriminatory acts are, in fact, all separate acts in which case every complaint will have to be sent to the ET within three months of the date on which it happened.

If claims are lodged after the end of the period, the tribunal is under no duty to accept them. There are circumstances in which late claims can be allowed and the law allows tribunals slightly more flexibility with discrimination claims. But reps should not count on a late claim being accepted.

When looking at whether to accept a late claim, tribunals tend to pay great attention to whether the claimant (that is, the person who has the complaint) could recover damages from anyone else for the case. Where the member is being advised by a trade union representative it may be possible for the claimant to sue the union for professional negligence and this may influence a tribunal to reject an application to accept a late claim.

‘Within’ in terms of ET time limits means before the end of the period, so, in practice, ‘within 3 months’ means three  months less one day. And ‘months’ means calendar months – so, for example, if a member is dismissed on 30 November he or she has until 28 February to lodge an ET complaint for unfair dismissal – or 29 February in a leap year.

Most cases to ET are now lodged online through the ET server – and it is only when that server sends the form on to the appropriate ET office that the claim is classed as ‘lodged’. Don’t leave submission to the last minute – there is case law to show that even a delay beyond the deadline of a matter of seconds can be enough to have a case ruled out of time.

For complaints to employment tribunals, with the exception of equal pay cases, which are dealt with below, most complaints have to be lodged with the employment tribunal within three months of the date of the act being complained of.

Equal pay cases are more complex. In general terms they have to be lodged within six months of the end of the employment where the person was being paid less for gender reasons. But there are all sorts of additional points to be taken into consideration, such as changes to the employment contract which can end that period of unfair under-payment.

Professional advice should be sought without delay on all cases relating to equal pay.

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