Deciding whether or not to sue your employer is never easy, but it is sometimes necessary. If you had to go through discrimination, wrongful termination, sexual harassment or injury at your workplace and your employer has hung you out to dry by taking little or no effort to resolve the issue then sometimes your only recourse is legal action.
But filing a lawsuit against your employer can be complicated. Before you go down that path, consider the commitment and expectations that come with suing someone.
Can You Sue Your Employer?
The first thing that you need to figure out is whether you have the grounds to sue. What you think is a violation of your rights may not be recognised that way as per the law. For example, if your employer has caused emotional distress with his/her verbal insults, it may not qualify as mental harassment. However, if as a result of these constant insults you develop a mental issue that leads to psychiatric problems, you may have a case against him/her.
Keep in mind that not all provisions may apply to your situation. For example, the Industrial Disputes Act was passed to safeguard the interests of the labour class working in factories. However, the definition of workman includes people from the managerial class as well so certain provisions may apply to all employees.
Further, you may refer to the Fundamental Rights of the Indian Constitution. And if any of them have been violated at your workplace and you seem to have experienced discrimination at the workplace on the basis of race, caste, or sex, you can file a case of violation of fundamental rights.
On What Grounds Can You Sue Your Employer?
Employment law applies when disputes between an employer and employee are irreconcilable. If you have a workplace dispute or issue that your employer is unable to resolve, then you should be able to file a lawsuit against the employer.
However, lawsuits should be saved for the most egregious acts — you can't rightfully sue your employer every time you're unhappy with your job. But that doesn't mean there aren't some circumstances when a lawsuit is appropriate. Here are a few situations where you may want to consider taking legal action against your employer.
As per the Fundamental Rights of the Indian Constitution, it is illegal for an employer to discriminate against an employee or applicant based on religion, caste, race, sex, and place of birth. If an employer discriminates against you, this could be a situation where a lawsuit is warranted.
The most talked-about form of harassment at the workplace is sexual harassment, although there are other types as well. Harassment does not necessarily come from your employer. Sexual advances from a co-worker, clients, or seniors also constitute as harassment. If your employer does nothing to resolve this issue, a lawsuit might change those dynamics.
Workers' Compensation refers to a payment or benefits received by an employee who is injured on the job. An employer is expected to pay the compensation irrespective of the cause of the injury since it happened at the workplace. An employee whose employer refuses to pay the compensation may file a claim seeking payment. Further, an employer cannot fire or retaliate towards the said employee for filing a worker's compensation claim.
Unlawful retaliation for Whistleblowing
A “whistle-blower” is an employee who reports unethical or illegal conduct by their employer. Retaliation occurs when an employer (via a manager or senior supervisor) fires an employee or takes any other type of adverse action against the employee for whistle-blowing. Most states have laws that prevent private companies from firing whistle-blowers.
Breach of Employment Contract
If an employee has a contract of employment with the employer, and the employer breaches the contract, the employee may file a lawsuit. Examples of breaches of conduct include an employer's failure to pay the employee the amount agreed to in the contract or withholding some other benefit provided in the contract.
Wrongful termination happens when an employer unethically lets an employee go for a reason unrelated to their performance or the state of the company. Wrongful termination may happen if the manager is looking to retaliate against the employer or as an act of discrimination. While wrongful termination can be difficult to prove, employees who have enough proof to state their case may sue.
Starting a Lawsuit Against Your Employer
If you believe you have a case against your employer, there are a few crucial steps to follow:
Step 1: File a Formal Complaint
If you've been discriminated against, harassed, wrongfully terminated, or injured on the job, you should start by approaching the HR department of your Company. It will be a good place to start by lodging a formal complaint at an initial stage. Make sure you give them enough time to evaluate the situation and suggest a solution to resolve the issue.
Step 2: Consult a Lawyer
Now, after you have lodged a formal complaint, if you feel that the HR is not doing enough from their end or that the resolution offered by them is not acceptable and you feel that additional steps will be needed then you need to consult a lawyer. State your case to your lawyer and ask them if you have enough to make a case. The lawyer will be able to give you advice based on your case and help you understand where you stand legally.
Step 3: Filing a Court Case
Most lawyers try to help you get a settlement out of court but if the nature of the case is such that compensation is not sufficient and you feel the need to go through the legal process to get the resolution you are looking for then you will have to file a court case against your employer.
You may file a case against your employer for contract violation in a civil court. Further, cases of mental harassment can be filed in civil court as well as a criminal court if it also includes criminal intimidation. Consult a lawyer to see if your case can be settled through arbitration or by a labour tribunal as this is easier and more cost-efficient.
If you decide to take the matter to court, ensure that you are well prepared for what is to come. Maintain a record of all the incidents that you think were wrong or in violation of your rights. If possible, note down the date and time as well. This will be immensely useful to your lawyer, who will be able to ascertain if you have a case at all. You can use this information even while discussing the matter with the HR team.
Step 4: Gather the support of your co-workers
You have to try to speak to your co-workers to see if they will support your claims. This will be useful to establish a pattern of the employer's behaviour. You can also research older cases similar to yours. But you have to keep in mind that these kinds of inquiries will not be fruitful as HR may try to cover up such incidents and tell you that the past cases are “confidential”. Further, what you can do is that you can go through the “employees' handbook” and your contract to understand the company policy. This will give you a fair idea of where you stand legally and help you understand how you can challenge and support your claims.
Step 5: Speak to your employer one last time
It is understandable that after what went down with you at your workplace you may want to avoid discussing this issue with them if you feel you've done plenty already to resolve the issue. But before you jump the gun, try talking to your employer one last time to see if the situation can be resolved without legal help. In many cases, the employer may want to avoid all the negative publicity and high legal fees and would be willing to come up with some kind of arrangement or resolution. Schedule a meeting with your boss or supervisor to discuss your issue and see if they're willing to come to an agreement.
Step 6: Gather Evidence
While you're discussing the matter with your employer and your lawyer, start collecting any solid foundation of evidence that can be helpful if you should ever need to go to court. Take pictures, save emails or messages and make notes related to any day-to-day encounters with potentially illegal behaviour.
Begin conversations with employees who may have had similar experiences or have witnessed it happening to you. Ask them if they would be willing to speak with your attorney about their own experiences.
Step 7: Decide if you want to pursue legal action
After this whole process, if you still find yourself unhappy with the resolution being offered to you or you feel that legal action is something that cannot be avoided then speak to your lawyer who will help you gather the rest of the information you need and file the appropriate paperwork.
What to expect once you follow through and sue your employer?
If you have finally made up your mind and you want to go ahead with this, you might also want to look at the flip-side:
-Even if you were treated unfairly at work, it is unlikely that you were treated illegally. It might be difficult to prove that your employer treated you poorly if you do not have any concrete proof to prove your case. Keep in mind that there is no legal right to a warm and fuzzy workplace.
-Law Suits can be long, drawn-out, stressful, and painful. The only people who enjoy litigation are lawyers but for you, the process can be a difficult experience.
-You may find out that your co-workers are not on your side. At times when you approach your co-workers, they might not come out and support your claims against your employer because they may not want to get involved in something that can potentially jeopardize their relations at work.
-You may be opening up your own life to scrutiny. Your employer will try to ascertain if the cause of stress is work or personal life. Your previous employment records and your performance at work will be under a microscope.
-You may be viewed as a ‘litigious' employee, which can affect your future employment.
What you DON'T have to worry about:
That your employer will fire you for filing the lawsuit (assuming you did it while still employed); or
That your employer will blacklist you, and you'll never work again if you sue.
So the simple answer to the question: “Can you sue your employer?” is “Yes. If you have a case.” But suing your employer should almost always be a last resort. It's better to try resolving your dispute via the company's grievance procedure or by approaching the HR Department. If you find yourself wrongfully terminated, you can negotiate a severance package. But if all those options are not viable and you've taken enough time to critically evaluate your situation and you still feel strongly that you were mistreated, then, by all means, consult with a lawyer who handles workplace disputes. However, the hidden costs of litigation must be considered before you file the suit, no matter how strong your case may be.