“Where do I stand?”
“Have I a case?”
Is it me or is it the employer?
These are the sort of comments and questions I hear from employees on a daily basis.
Invariably there is an issue in the workplace, or there has been some friction, or the employee feels undervalued and underappreciated, or has a sense of unfairness about how she is being treated in the workplace.
When they come to me they want to know if they have a legitimate claim or cause of action against the employer, or whether there is any substance to their sense of grievance and a feeling of being hard done by.
My 4 question test
I apply a four question test to get to the bottom of it and provide clarity for the employee by answering the question honestly and plainly. The four questions I ask are:
- Has there been a breach of the employee’s statutory right?
For example, the Organisation of Working Time Act 1997 sets out the rest breaks, working time, and annual leave an employee to which an employee is legally entitled.
Has there been a breach? This is usually easy to identify. Or has the employee been discriminated against on one of the 9 grounds of discrimination?
- Has there been a breach of the employment contract?
The basis document governing the relationship between the employer and employee is the contract of employment. If, for example, the employer is to provide 5 weeks of paid annual leave and reneges on this provision and only grants 4 weeks there is a clear breach of the contract.
Or if the contract says you will be reimbursed for out of pocket expenses or paid for overtime and these conditions are not adhered to will give rise to a breach of a provision of the contract.
- Has there been a breach of a constitutional right?
Every citizen has the right to fair procedures, natural justice, the right to join a trade union, the right to their good name, the right to earn a living, the right to practice a religion, and so forth. Has there been a breach of any of the employee’s constitutional rights?
- Is the employer guilty of a tort-that is, a civil wrong? Has the employer been negligent and caused a personal injury to the employee? Has the employer failed to provide a safe place of work?
So, what if you feel a towering sense of grievance and unfairness but your issue cannot be found in any of the four foregoing categories?
The likelihood is you have a grievance, not a justiciable cause of action or a legal claim. This grievance or sense of unfairness and not being treated fairly can arise in as many ways as one person can hurt another or say something rude or careless; but this alone will not give rise to an employment claim against your employer that is likely to succeed.
This grievance may be a crucially important part of your life, especially when you have to go to work on a daily basis and spend a great deal of your life in the workplace.
But you do need to check whether you actually have a claim that might succeed, or merely a grievance, however well justified.