Legal Article - Employment Law

Unfair Dismissal

This occurs when the employer dismisses an employee without having a good reason and/or acts unreasonably in the way they carried out the dismissal. An employee needs to have carried out 1 years continuous service before they are eligible for qualification of this right.

In some circumstances a dismissal is automatically unfair. This occurs if the reason for dismissal was one of the following:

I. Because of the employee’s sex, race, colour, nationality, sexual orientation or religion/politics (the latter two are most relevant in Northern Ireland although all are applicable).

ii. Because the employee is married (but not if they are single), pregnant or has given birth, or for any other reason connected with her pregnancy or childbirth, or during the statutory maternity leave period.

(NOTE: Employees dismissed for the above reasons would normally claim sex or race discrimination as the compensation payable is likely to be higher and no length of service is required).

iii. Because the employee was, or proposed to become, a member of an independent trade union; or had taken part, or proposed to take part, in the activities of an independent trade union, if the activities were outside working hours or in accordance with an arrangement with the employer permitting the employee to take part in such activities during working hours; or that the employee was not a member of a trade union, or had refused or proposed to refuse to become or remain a member.

iv. Because the employee took, or proposed to take, certain specified types of action on health and safety grounds such as to

• carry out or propose to carry out any activities which they are designated by their employer to carry out in connection with preventing or reducing risks to health and safety at work; or

• perform or propose to perform any functions they have as official or employer acknowledged health and safety representatives or committee members; or

• bring to their employer’s attention, by reasonable means and in the absence of a representative or committee with whom it would be reasonably practicable for them to raise the matter, a concern about circumstances at work which they reasonably believe are harmful to health or safety;

• in the event of danger which they reasonably believe to be serious and imminent and which they would not reasonably be expected to avert, leave or propose to leave the workplace or any dangerous part of it, or (while the danger persists) refuse to return; or

• In circumstances of danger, which they reasonably believe to be serious and imminent, take or propose to take appropriate steps to protect themselves or other persons from the danger.

Whether or not the steps, which an employee takes to protect him or herself or others from dangers, are “appropriate” will be judged by reference to all the circumstances including, in particular, the employee’s knowledge and the facilities and advice available at the time.

Also it will not be unfair for an employer to dismiss an employee (or subject them to any other detriment) if it was, or would have been, so negligent for the employee to take the steps they took, or proposed to take, that a reasonable employer could have reacted in that way.

v. Because the employee sought, in good faith, to assert a statutory employment protection right by either bringing proceedings against the employer to enforce the right or by alleging in some other way that the employer has infringed the right. To benefit from this protection, employees do not necessarily have to specify the right they sought to assert, so long as they made it reasonably clear to the employer what that right was.

Provided that they have acted in good faith, employees are protected regardless of whether or not they did in fact qualify for the right they sought to assert and regardless of whether or not that right had in fact been infringed.

The main rights covered by the new protection are those relating to:

• written statement of employment particulars;

• itemised pay statement;

• guarantee pay; -

• Remuneration during suspension on medical grounds;

• Time-off for public duties;

• time-off to look for work or make arrangements for training prior to redundancy;

• Time-off for ante-natal care;

• Protection from unlawful deductions from pay;

• Protection against unlawful receipt of payments by employer; protection against detriment in health and safety cases;

• Minimum period of notice;

• Deduction of unauthorised or excessive union subscriptions;

• requiring the employer to stop payment of a contribution to a union’s political fund;

• Action short of dismissal on trade union grounds; and

• Time-off for trade union duties and activities.

vi. Where the employee has a “spent” conviction.

vii. The employee is a protected or opted-out shop worker and refuses to work on Sundays;

viii. Where a business or part of a business is transferred from one employer to another and the employee is dismissed by either the old or new employer mainly because of the transfer and there are no economic, technical or organisational reasons entailing changes in the workforce to justify their dismissal.

ix. Working Time and National Minimum Wage Rights.

Who can complain of Unfair Dismissal?

Any employee with one year or more continuous service with the employer, irrespective of the number of hours worked per week. The one year service is in reality 11 months and three weeks as employees have the right to add the one week’s statutory notice entitlement to their length of service. Only employment from an employee’s sixteenth birthday counts towards service.

Where the reason for dismissal is for trade union membership reasons, pregnancy or maternity or for exercising a statutory employment protection right, or for specified types of action on health and safety grounds or for refusing Sunday work (see (d) above), any employee may make a complaint (i.e. there are no service or age restrictions).

Who cannot complain of Unfair Dismissal?

Those who are not employee’s e.g. self-employed, independent contractors, YT trainees, agency workers, free-lance agents. Employees who have not completed one year’s continuous employment with their employer before their effective date of termination (i.e. the date on which the dismissal takes effect, except where the employee has not been given the required statutory notice, in which case the effective date of termination is the date on which that notice would have expired if it had been given).

This qualification is reduced to one month where an employee is dismissed on medical grounds in consequence of certain health and safety requirements and no service requirement is necessary for dismissals for trade union reasons, exercising a statutory employment right, taking action on health and safety grounds, pregnancy or maternity, or for refusing Sunday work, or who have been discriminated against on the grounds of sex, race or disability. (This list is not exhaustive).

Employees with fixed-term contracts for one year or more where the dismissal consists only of the expiry of the contract without renewal and the employee has previously agreed in writing to forego their right of complaint in such circumstances.

Employees who ordinarily work outside Great Britain under their contract of employment.

Employees who have reached a settlement with their employer, either with ACAS conciliation or on the basis of a “compromise agreement” reached with the benefit of independent legal advice, in which they waive their right to make a complaint in relation to the dispute to which the settlement relates.

Published: 03 Jun 2011


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