Legal Advice For Employees
Q. If I have been unfairly dismissed, should I appeal or go straight to the tribunal? What is the time limit for bringing a claim in the tribunal?
A. You should appeal against your dismissal. If you do not do so any compensation you are awarded may be reduced under section 127 of the Employment Rights Act 1996. A claims to the tribunal must be brought within 3 months of the dismissal. You should not jeopardise the time limit by waiting for the outcome of a delayed appeal process
Q. I think I have been given an adverse and unfair reference from my old employer. What can I do about it?
A. You can obtain a copy of the reference from the company who turned you down under the Data Protection Act 1998. You must apply in writing to the recipient of the reference and you may be required to pay a small fee. Section 7 as read with Schedule 7 of the Data Protection Act gives you this right.
Q. I have been called to a disciplinary hearing and want to bring my union rep with me. My employer has refused because they do not recognise my particular union. Can I insist?
A. Under the Employment Relations Act 1999 you have a right to be accompanied to disciplinary and grievance hearings by a trade union official or a workplace colleague. If your employer refuses and you are subsequently dismissed their refusal is likely to make your dismissal unfair. You can also bring a separate complaint in an Employment Tribunal if your employer refuses [threatens that it will refuse] to allow you to be accompanied by the trade union rep or workplace colleague of your choice. There is a time limit of three months from the date of the failure/threat within which claims must be brought. If successful you will be paid compensation of up to two weeks' pay.
Q. My employer is proposing to make a large number of employees redundant (35) and it refuses to give us any information about what is happening. Is my employer obliged to speak to me about the redundancy situation or can they just tell me that I am being made redundant?
A. If your employer makes 20 or more people redundant in a 90 day period it must consult with "appropriate representatives" and the consultation must begin at the very least 30 days before the first dismissal. If your employer recognises a union then its officials will be the "appropriate representatives". Otherwise "appropriate representatives" will be elected employee reps. The Employer must allow the representatives access to affected employees including providing appropriate facilities such as meetings rooms etc.
Q. I am due to return to work after taking 18 weeks maternity leave. I have informed my employers that I want to come back to work full time but they have said that the person who has been covering my job whilst I have been away is cheaper and therefore I cannot come back. Can they do this?
A. Employees who wish to return to work after taking "ordinary" maternity leave i.e. 18 weeks leave are entitled to their job back. If your employer does not allow you to return then it will have unfairly dismissed you and you can bring a claim for compensation in the Employment Tribunal providing your claim is received by the Tribunal within three months of your notified date of return. On return from “additional” maternity leave you have the right to the same job, or if not practical, a similar job on terms and conditions no less favourable.
Q. I am due to return from maternity leave in a few months time and I want to work part-time. My employer does not have any part-time employees at present but I understand that I can insist they take me back to my old job on a part time basis. Is this correct?
A. Currently there is no right to insist on part-time work. However, your employer may be discriminating against you if it refuses your request. You should speak to your employer and explain your reasons for wanting to work part-time e.g. problems in obtaining childcare. If it refuses you should ask for justification. If you think your employer's reason is not justified and that part-time or flexible working is possible you should consider speaking to your employer again or bringing a formal grievance. If you wish to bring a claim for compensation because of the refusal you can make a claim in the Employment Tribunal within three months of the date of refusal. You may also soon have a right under the New Employment Bill if the Employer does not follow a statutory process for dealing with your request.
Q: I've been refused a reference, do I have a right to a reference ?
An employer is not generally obliged to provide a reference, (unless there's a term in the contract to that effect or an employee's professional rules stipulate it should).
A. A reference can be refused because an employee has issued proceedings against the employer or to preserve the employer's position in pending litigation. Subject to these two exceptions, an employee who is refused a reference may have a possible victimisation claim against their employer, under the Sex Discrimination Act 1975.