Relationships between employers and employees do not always run smoothly and these issues have been approached with a view to mediation rather than litigation however in the event that matters cannot be resolved on a consensual basis through negotiation there comes a point where an employment law solicitor has little other option than to seek resolution of disputes on a contentious basis. The first step in any employer/employee dispute involving wrongful dismissal, discrimination, harassment, bullying or redundancy is for the parties to discuss the personal grievance and to submit to mediation where appropriate often prior to the involvement of employment solicitors whose main terms of reference usually relate to an intractable problem arising between the parties which precludes consensual settlement of the personal grievance.
Employment Relations Authority
The Employment Relations Act 2000 gives employees the right to pursue a personal grievance before the Employment Relations Authority (ERA) if they believe that they have been the victim of wrongful dismissal, discrimination, harassment or bullying. An appeal about an ERA personal grievance decision lies with the Employment Court. The ERA deals with employment relationship problems that cannot be resolved by mediation and whilst it is an investigative body it operates in an informal way compared to a court of law. Either or both parties to a personal grievance may be legally represented by employment law solicitors. At any stage in the deliberation the ERA may direct that the parties enter into mediation whether or not they have already done so and failed to reach consensus. Following investigation and deliberation by the ERA a determination is made which may include (but is not limited to) the following:-
- interim reinstatement whilst the ERA completes its investigation
- remedies for personal grievance
- reimbursement of lost wages
- order wages to be paid
- order compliance with agreements
- costs of the action
Human Rights Commission
Alternatively an application alleging discrimination can be made by virtue of the Human Rights Act 1993 & The Human Rights Amendment Act 2001 to the Human Rights Commission (for allegations of discrimination employees can choose to complain to the Employment Relations Service or the Human Rights Commission, but cannot take proceedings with both). Appeal from a decision of the Human Rights Commission lies with the independent Human Rights Review Tribunal.
Harassment & Bullying
Workplace harassment may be defined as any unwelcome comment, conduct, or gesture that is intimidating, humiliating, malicious, degrading or offensive which affects the ability to work properly. Harassment includes physical, sexual and racial behaviour. Workplace bullying is repeated unwelcome and unreasonable behaviour which may not be unlawful but is intended to disorientate or humiliate the recipient. The effects of harassment may include absenteeism, stress, panic attacks, depression and fear. The company may suffer due to reduced performance, low morale, increased staff turnover, damaged reputation and the cost of litigation. Our employment law solicitors deal with personal grievance compensation claims for bullying and harassment.
There are many justifiable reasons for termination of employment which must be carried out both substantively and procedurally in a fair manner by the employer who must have been perceived to have acted fairly and reasonably. Immediate dismissal is fair for serious misconduct including theft, assault, breaching work rules and disobeying direct instructions however lesser forms of misconduct require warnings to justify dismissal. Employers are required by law to make adequate investigations and consider the facts, following representations by the employee prior to any dismissal. Claims for unjustified dismissal can arise in cases where there is a legitimate reason, but procedural matters have been inadequately dealt with. Constructive dismissal is a form of wrongful dismissal which occurs where an employee has been so badly treated that they have no other realistic option but to terminate the employment themselves. Our employment law solicitors deal with personal grievance compensation claims for wrongful dismissal and constructive dismissal.
Discrimination within an employment situation occurs when a person is treated less favourably than another employee in the same or similar occupation. Discrimination may be unlawful if it is based on any of the following: sex (including pregnancy), disability (including reliance on a guide dog, wheelchair or other aids), marital status, age, religious belief, ethical belief, political opinion, colour, race, family status, employment status, sexual orientation, ethnic or national origins. Discrimination may be direct or indirect which occurs when an employer applies conditions that effectively treat some categories of employee less favourably than others. The legislation applies to employees and job applicants. Our employment solicitors deal with discrimination compensation claims including sexual discrimination, racial discrimination and disability discrimination.
There must be genuine commercial reasons to terminate employment by way of redundancy which must be carried out fairly and in accordance with the employment agreement. The courts have not laid down hard and fast rules about commercial judgement but require the employer to justify the redundancy on commercial principles. It is not uncommon for a dishonest employer to terminate employment unlawfully on the basis of redundancy when no such situation exists in order to secure a personal financial gain. Procedural fairness may demand reasonable notice, consultations with employees and consideration of suitable alternatives. Failure to satisfactorily carry out a fair procedure for redundancy may be unlawful, justifying compensation. Our employment law solicitors deal with redundancy claims.
Our employment solicitors deal with personal grievance applications for wrongful dismissal, discrimination, harassment, bullying, redundancy including the following areas of work :-
- employment agreements
- disciplinary matters
- performance issues
- personal grievances
- workplace discrimination
- harassment & bullying
- stress claims
- legal rights and obligations
- legal representation