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Employment Claims

Your employment problem-is there a real, valuable remedy open to you?

The money shot. Is there a money shot?

You need to think about this carefully.

Let me explain.

If you are involved in an employment dispute you need to think strategically. You need to think about the next step, not just this one.

I meet an average of 15 to 20 employees every week in my office in Enfield. They bring and discuss a wide range of issues, complaints, grievances, and justiciable legal claims with me.

But they often fail to give sufficient thought to whether there is a real remedy open to them if and when they pursue the matter further.

Marta and Peter both came to me, for example, and told me about how disappointed they were with their employer when they were out sick. The employer had not contacted them to see how they were or enquire about their welfare and Marta and Peter took this personally. They felt they were not appreciated as employees, were taken for granted and their years of loyal service were undervalued.

But what could they do about it? 

Not a lot, if truth be told. 

It would be best practice for the employer to keep in touch and exhibit a good deal of concern for a sick employee. 

Best practice, though, not obligatory.

Thus, there is nowhere for Peter and Marta to pursue this any further.

Jacob, too, had a situation in the workplace that concerned his privacy and data protection entitlements. The employer had done something that was not best practice and was a failure to fully implement his own GDPR/data privacy policy.

But the first remedy open to Jacob was to raise a grievance in the workplace. The likelihood is that his grievance would be upheld, the failure on the part of the employer would be fixed, and that was that.

The next step? Back to work because there was no place else, no other remedy open to the employee.

If his complaint was not upheld it would be open to him to make a complaint to the Office of the Data Protection Commissioner. This referral may or may not lead to a recommendation by the Data Protection Commissioner to the employer to fix whatever is wrong. 

That may well be the end of it, however, unless there was an egregious breach of the employee’s data protection rights.

Grievances in the workplace

If an employee has a grievance in the workplace he or she is perfectly entitled to invoke the grievance procedure to raise the issue and have it dealt with. But he needs to remember there are generally only two outcomes possible: i) the grievance will be upheld or ii) it will not be upheld.

If it is not upheld, and assuming any appeal comes to the same decision, that is the end of the matter.

If it is upheld perhaps a disciplinary procedure against a colleague will be the next step for the employer. Once the employer deals with the matter, however, it is over. There may well be no other remedy open to the aggrieved employee.

Trade disputes under Industrial Relations Act 1969

If the employee is not happy with the outcome of a grievance investigation in the workplace she can submit a trade dispute to the Workplace Relations Commission under the Industrial Relations Act 1969.

But this will only lead to a legally unenforceable, non binding recommendation which may only lead to further frustration for the complaining employee.

Constructive dismissal

If the employee leaves the job she can bring a claim for constructive dismissal. But this is a difficult case to win and the outcome of financial loss only may prove to be a useless, valueless outcome for the employee who has just voluntarily walked away from her job.

Justiciable claims and remedies that carry weight

There are a number of claims arising from the employment relationship that carry significant remedies. For example, the Protected Disclosures Act 2014 contains remedies of up to five year’s salary for breaches of certain rights of the employee.

Unfair dismissal and claims for discrimination can see awards of up to two years’ salary. Personal injury claims can lead to significant awards under the headings of general damages and special damages (for out of pocket expenses flowing from the injury/damage).

The Organisation of Working Time Act 1997 provides remedies for breaches of the employee’s rights in respect of working time, annual leave, excessive hours, rest breaks, and so forth.

And there is a great deal of other statutory rights, along with contractual rights, which the employee can seek to enforce and ensure that they are not trampled upon.

Conclusion

As an employee you need to look further ahead when you have an employment law problem. You need to see if there is a genuine, enforceable remedy open to you.

Or if you merely have a grievance(s) which does not lend itself to a remedy or outcome that will satisfy you fully.

Your job is, with good advice, to look ahead and see what is the best, most strategic decision you can make. Not just for now but for the medium and long term.

Remember, you can win a battle and lose the war. 

So pick your battles wisely.