Dismissal: fair and unfair: a guide for employers. Appendix Part 1

URN No: 07/829/A2

APPENDIX: FURTHER INFORMATION - Part 1

Those who may not complain of unfair dismissal

The following people cannot normally complain of unfair dismissal (but see 'Note' below):

  • those who are not employees (for example an independent contractor or freelance agent). However, in some cases specified workers who are not employees can complain that they have suffered a detriment by the termination of their contracts, compensation being awarded on the same basis as for unfair dismissal. See also:

  • employees who have not completed one year's continuous employment with their employer before their effective date of termination (see Effective date of termination). This qualification is reduced to one month where an employee is dismissed on medical grounds in consequence of certain health and safety requirements or recommendations (see the document Suspension from work on medical or maternity grounds under health and safety regulations);

  • members of the police service (except in relation to dismissal for taking action on health and safety grounds and for making a public interest disclosure) and armed forces;

  • masters and crew members engaged in share fishing who are paid solely by a share in the profits or gross earnings of a fishing vessel;

  • 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 advice, in which they have waived their right to make a complaint in relation to the dispute to which the settlement relates;

  • employees covered by a dismissal procedures agreement which has been exempted from the unfair dismissal provisions by an Order made by the Secretary of State.

Note : In certain types of case (see Who can complain of unfair dismissal?), an employee may complain to an employment tribunal regardless of length of service.

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Constructive dismissal

A tribunal may rule that an employee who resigns because of conduct by his or her employer has been 'constructively dismissed'. For a tribunal to rule in this way the employer's action has to be such that it can be regarded as a substantial breach of the employment contract indicating that he or she intends no longer to be bound by the contract: an example of this might be where the employer arbitrarily demotes an employee to a lower rank or poorer paid position. The contract is what has been agreed between the parties, whether orally or in writing or a combination of both, together with what must necessarily be implied to make the contract workable.

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Dismissal on the grounds of pregnancy or maternity

A woman will automatically be regarded as unfairly dismissed if her employer dismisses her, or selects her for redundancy, in any of the following circumstances:

  • the dismissal is for a reason connected with her pregnancy;

  • the dismissal is on the grounds that she has given birth and takes place during her ordinary or additional maternity leave;

  • the dismissal is on the grounds that she took, sought to take or availed herself of the benefits of ordinary maternity leave, or that she took or sought to take additional maternity leave;

  • the dismissal is on grounds of a health and safety provision which could give rise to a maternity suspension;

  • she is unfairly selected for redundancy for any of the above reasons;

  • the dismissal is on grounds of redundancy, it takes place during her statutory maternity leave, and the employer has not first complied with the requirement to offer her any suitable alternative vacancy which is available.

  • for a woman whose expected week of childbirth begins on or after 1 April 2007, the dismissal is because she undertook, considered undertaking or refused to undertake up to 10 days’ work during her statutory maternity leave period (‘work’ may include training or any other activity undertaken to assist the employee in keeping in touch with the workplace).

In addition, it is unlawful to dismiss an employee who doesn't return from her maternity leave on time because:

  • her employer has not properly notified her of the date it ends and she reasonably believes it has not ended; or

  • her employer has given her less than 28 days' notice of the date it ends and it is not reasonably practicable for her to return on that date.

An employee who is not given her job back, or offered a suitable alternative job, at the end of additional maternity leave will not be regarded as unfairly dismissed if the employer can show an employment tribunal that:

  • it was not reasonably practicable (on grounds other than redundancy) for her to be taken back in her original job or a suitable alternative job and an associated employer had offered her suitable alternative employment which she had either accepted or unreasonably refused

If a woman is made redundant during her ordinary or additional maternity leave period, she may be entitled to a redundancy payment. However, if she was offered a suitable vacancy and unreasonably refused it, she may lose her right to a redundancy payment.

In addition, employees have the right not to be subjected to detrimental treatment on the grounds of pregnancy, childbirth or maternity.

A detailed description of the maternity provisions may be found in DTI guidance on maternity leave.

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Dismissal related to paternity leave

Employees are protected from suffering a detriment or dismissal for taking, or seeking to take, paternity leave. Employees who believe they have been treated unfairly for these reasons can complain to an employment tribunal regardless of their length of service. Employees who are not given their job back at the end of paternity leave are entitled to make a complaint of unfair dismissal, regardless of their length of service.

It is unlawful for an employer to dismiss an employee because he:

  • took paternity leave or
  • sought to take paternity leave

This protection against dismissal also applies if an employee is selected for redundancy on these grounds.

Further information about paternity leave can be found in the document Working fathers - rights to leave and pay: a guide for employers and employees.

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Dismissal related to adoption leave

Employees are protected from suffering a detriment or dismissal for taking, or seeking to take, adoption leave. Employees who believe they have been treated unfairly for these reasons can complain to an employment tribunal regardless of their length of service. Employees who are not given their job back at the end of ordinary adoption leave are entitled to make a complaint of unfair dismissal, regardless of their length of service.

It is unlawful for an employer to dismiss an employee because:

  • they took or sought to take adoption leave; or

  • their employer believes that they are likely to take adoption leave; or

  • their employer failed to give them appropriate notice of their return date and they reasonably believed that the period had not ended; or

  • their employer gave them less than 28 days’ notice of the date on which their adoption leave would end, and it was not reasonably practicable for them to return on that date.

In addition, employees have the right not to be subjected to detrimental treatment on these grounds.

This protection against dismissal also applies if an employee is selected for redundancy on these grounds.

If a redundancy situation arises during an employee's ordinary or additional adoption leave which makes it impractical for their employer to continue to employ them under their original contract, the employee is entitled to be offered a suitable alternative vacancy where there is one. The offer should be made before the original contract ends and the new contract must take effect immediately when the original contract does end.

If the employer fails to offer a suitable alternative vacancy and there is one, the redundancy will be regarded as unfair dismissal. If the employee unreasonably turns down a suitable alternative vacancy, they may give up their right to a redundancy payment.

An employee may make a complaint about redundancy during adoption leave to an employment tribunal.

Further information about adoption leave can be found in DTI guidance on adoption leave.

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Dismissal relating to the right to request flexible working arrangements

It is unlawful for an employer to dismiss an employee irrespective of their length of service if the reason or the main reason for the dismissal is that:

  • they made an application to work flexibly under the right
  • their application to work flexibly has been granted
  • they have made or have stated their intention to make a complaint to an employment tribunal in respect of their application to work flexibly.

This protection against dismissal also applies if an employee is selected for redundancy on these grounds.

It is also unlawful for an employer to subject an employee to any other detrimental treatment on these grounds.

For further information see Flexible working: the right to request and the duty to consider: guidance for employers and employees and Flexible working: the right to request: a basic summary.

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Dismissal for taking action on health and safety grounds

Employees will be unfairly dismissed if their employer dismisses them (or selects them for redundancy when others in similar circumstances are not selected) because they:

  • 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 could 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 and other persons from the danger.

It is also unlawful for an employer to subject an employee to any other detrimental treatment on one of these grounds.

Whether or not the steps which an employee takes to protect him or herself or others from danger 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.

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

There is no qualifying period of service, for employees who wish to complain that they have been dismissed for one of the reasons described in this section.

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Dismissal for asserting a statutory employment right

Employees will be unfairly dismissed if their employer dismisses them (or selects them for redundancy when others in similar circumstances are not selected) because they have sought to assert one of their statutory employment protection rights either by 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 have specified 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 rights covered by the 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 antenatal care;
  • protection against 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;
  • detriment by any act, or any failure to act, on trade union grounds;
  • time off for trade union duties and activities or training;
  • protection against detriment in cases relating to Sunday shop or betting work;
  • time off for employee pension scheme trustee duties or training;
  • time off for employee representative duties or candidacy;
  • working time, rest periods, breaks and annual leave;
  • making a public interest disclosure;
  • time off for study or training;
  • pregnancy, childbirth and maternity;
  • maternity, paternity and adoption leave;
  • parental leave;
  • time off for dependants;
  • the right to request flexible working arrangements.

Similar protection is provided for where action is taken to enforce an employee's right to the national minimum wage (see Dismissal relating to the national minimum wage), or working tax credit (see Dismissal relating to the Tax Credits Act 2002) and where an employee takes certain actions under the Transnational Information and Consultation of Employees Regulations 1999 (see Dismissal relating to the Transnational Information and Consultation of Employees Regulations 1999), the European Public Limited-Liability Company Regulations 2004 or the Information and Consultation of Employees Regulations 2004 the Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 or the European Cooperative Society (Involvement of Employees) Regulations 2006.

There is no qualifying period of service for employees who wish to complain that they have been dismissed for one of the reasons described in this section.

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Dismissal in connection with criminal offences

Inside employment

As explained before (see What is reasonable procedure and sufficient reason for dismissing an employee?), for a dismissal to be fair the employer must not only have a valid reason for the dismissal, but must also act reasonably. In a case in which the employee is suspected of a criminal offence, the test is whether the employer genuinely believed on reasonable grounds that the applicant was guilty of the offence in question and not, as in a criminal court, whether it is established beyond all reasonable doubt that the employee is guilty of the particular matter with which charged. Belief on reasonable grounds in this context will normally involve proper inquiries into the matter on the part of the employer. If the employer conducts such inquiries and gives the employee an opportunity to explain what has happened and then has reasonable grounds for coming to the conclusion that the employee can no longer be retained, the tribunal will usually find that the employer acted reasonably even if the employee is subsequently acquitted by a criminal court of the offence in question. On the other hand, if the employer dismisses the employee without making proper inquiries or giving the employee an opportunity to explain, the tribunal may well find that the employer acted unreasonably and that the dismissal was unfair.

Outside employment

The question of criminal offences outside employment is dealt with by the Acas Code of Practice.

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Dismissal in connection with illness

The inability of an employee to do a job, for whatever reason, is a valid reason for dismissal. However, the case of the employee who becomes physically or mentally unable to do his or her job because of illness, or is persistently absent from work because of illness, clearly demands special consideration. Tribunals recognise that - especially in the smaller firm - it will often not be possible for the organisation to 'carry' the ill employee, and they understand that a time comes when the employer can no longer be expected to keep open the post of an employee who is off sick.

As with the dismissals for other reasons, however, they expect the employer to have discussed the position with the employee concerned and to be absolutely sure of the facts about the employee's state of health and whether he or she is incapable of doing his or her job, or likely to be persistently absent in the future. This may involve taking medical advice about the employee's condition by talking, with the employee's permission, to his or her doctor. If there is less demanding work available which the sick employee would be capable of doing the tribunal will normally expect the employer to offer it to the employee. Employers should also note that the Disability Discrimination Act 1995 makes it unlawful for employers, with the exception of the armed forces, to discriminate against current or prospective disabled employees on the grounds of their disability. To be covered by the provisions of the Disability Discrimination Act, an employee would need to meet the definition of disability under the Act, which is "a physical or mental impairment which has a substantial and long-term adverse effect on (a person's) ability to carry out normal day-to-day activities". Under the Act, an employer dismissing a disabled person, or giving them compulsory early retirement, for a reason relating to the disability, would need to be able to justify this with a substantial and relevant reason. An employer cannot justify such treatment if the reason could be removed or made less than substantial, by a reasonable adjustment. Examples of reasonable adjustments might include the provision of specialist equipment, an alteration to premises to ease access, increased flexibility concerning working hours, not counting leave taken in relation to disability as ‘sick leave’, redeployment to other duties, possibly in another location, or the allocation of some non-core duties to another employee.

Free material on all the Act's provisions can be obtained from the Disability Rights Commission (Helpline 08457 622 633; textphone 08457 622 644).The Government has also published a Code of Practice for the elimination of discrimination in the field of employment against disabled persons or persons who have had a disability, which is available from The Stationery Office (£9.95 ISBN 0-11-270954-0).

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Dismissal on grounds of redundancy

Redundancy in itself is a valid reason for dismissal. But an employee dismissed for this reason may nevertheless be found to have been unfairly dismissed. This will arise where the employee was unfairly selected for redundancy:

  • because of trade union membership, trade union non-membership, trade union activities or proposed activities, or use or proposed use of trade union services;

  • because of failure to accept an unlawful inducement by an employer to relinquish trade union rights or to disapply collective agreements;

  • because of failure to accept an offer made by an employer to induce the employee to be a trade union member;

  • because of refusing to make a payment in lieu of union membership, or objecting to their employer deducting a sum from their wages or salary to make such a payment;

  • because the employee was chosen for redundancy for taking action on health and safety grounds (see Dismissal for taking action on health and safety grounds) or for asserting a statutory employment right (see Dismissal for asserting a statutory employment right); or

  • because the employee was chosen for redundancy on maternity-related grounds (see Dismissal on the grounds of pregnancy or maternity); or

  • because the employee was chosen for redundancy for taking or seeking to take paternity leave (see Dismissal related to paternity leave);

  • because the employee was chosen for redundancy for taking or seeking to take adoption leave (see Dismissal related to adoption leave);

  • because the employee was chosen for redundancy for requesting flexible working arrangements (see Dismissal relating to the right to request flexible working arrangements);

  • because the employee was chosen for redundancy by reason of his or her refusal or proposal to refuse to do shop work or betting shop work on Sundays (see Sunday shop and betting work: employees rights - Regulatory Guidance); or

  • because the employee was chosen for redundancy for performing, or proposing to perform, any duties relevant to his or her role as an employee occupational pension scheme trustee (see Dismissal relating to activities as an occupational pension scheme trustee); or

  • because the employee was chosen for redundancy for performing, or proposing to perform, any duties relevant to his or her role as an employee representative or as a candidate to be a representative of this kind (see Dismissal relating to activities as an employee representative); or

  • because the employee was chosen for redundancy for reasons relating to the national minimum wage (see Dismissal relating to the national minimum wage); or

  • because the employee was chosen for redundancy for reasons relating to the Working Time Regulations 1998 (see Dismissal relating to the Working Time Regulations 1998); or

  • because the employee was chosen for redundancy for making a protected disclosure
    within the meaning of the Public Interest Disclosure Act 1998 (see Dismissal for making a public interest disclosure); or

  • because the employee was chosen for redundancy because he or she took or sought to take parental leave, time off for dependants, ordinary maternity leave or additional maternity leave (see Dismissal on the grounds of pregnancy or maternity or Dismissal relating to parental leave or Dismissal relating to time off for dependants); or

  • because the employee was chosen for redundancy for taking lawfully organised official industrial action lasting twelve weeks or less (or more than twelve weeks, in certain circumstances) (see Dismissal during an industrial dispute); or

  • because the employee was chosen for redundancy for exercising or seeking to exercise rights relating to trade union recognition procedures (see Dismissal on the grounds of trade union recognition); or

  • because the employee was chosen for redundancy for performing or proposing to perform any duties relating to an employee's role as a workforce representative or as a candidate to be such a representative for the purposes of the Transnational Information and Consultation of Employees Regulations 1999, or for taking certain actions in connection with these regulations, or for proposing to take or failing to take such actions (see Dismissal relating to the Transnational Information and Consultation of Employees Regulations 1999; or

  • because the employee was chosen for redundancy for reasons relating to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (see Dismissal relating to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000); or

  • because the employee was chosen for redundancy for reasons relating to the right to be accompanied at disciplinary and grievance hearings (see Dismissal in connection with disciplinary and grievance hearings); or

  • because the employee was chosen for redundancy for reasons relating to the Tax Credits Act 2002 (see Dismissal relating to the Tax Credits Act 2002); or

  • because the employee was chosen for redundancy for reasons relating to the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (see Dismissal in connection with the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002);

  • because the employee was chosen for redundancy for reasons relating to the European Public Limited-Liability Company Regulations 2004 (see Dismissal relating to the European Public Limited-Liability Company Regulations 2004);

  • from 6 April 2005, because the employee was chosen for redundancy for reasons relating to the Information and Consultation of Employees Regulations 2004 for undertakings with 150 employees (from 6 April 2007 for undertakings with 100 employees and from 6 April 2008 for undertakings with 50 employees) (see Dismissal relating to the Information and Consultation of Employees Regulations 2004);

  • because the employee was chosen for redundancy for reasons relating to jury service (see Dismissal relating to jury service).

  • from 6 April 2006, because the employee was chosen for redundancy for reasons relating to the Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 for undertakings with 150 employees (from 6 April 2007 for undertakings with 100 employees and from 6 April 2008 for undertakings with 50 employees) (see Dismissal relating to the Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006);

  • because the employee was chosen for redundancy for reasons relating to the European Cooperative Society (Involvement of Employees) Regulations 2006 (see Dismissal relating to the European Cooperative Society (Involvement of Employees) Regulations 2006);

  • from 6 April 2007, because the employee was chosen for redundancy for exercising or seeking to exercise the right to be accompanied at a meeting to consider a request not to retire, or for exercising or seeking to exercise the right to accompany a fellow employee at such a meeting (see Dismissal in connection with meetings to discuss requests not to retire).

In addition, as in respect of any other reason for dismissal, the tribunal needs to be satisfied that the employer acted reasonably in treating the redundancy as a sufficient reason for the dismissal. Accordingly, here also, the tribunal will look to see that the dismissal of that particular employee or the manner of the dismissal was fair; examples of unfair redundancy dismissals could occur where the employer failed to give adequate warning of redundancy or failed to consider alternative employment for the employee. For further information, see the document Redundancy entitlement - statutory rights and the Acas booklet Redundancy handling.

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Dismissal on the transfer of an undertaking

Where an undertaking or a part of an undertaking is transferred from one employer to another (for example, through the sale of the undertaking or part of the undertaking), if either the old or the new employer dismisses an employee solely or mainly because the undertaking or part of the undertaking has been transferred, the dismissal will be considered unfair.

However, if a dismissal associated with the transfer, either by the old or the new employer, is necessary for economic, technical or organisational reasons entailing changes in the workforce, it may be considered fair if a tribunal finds that this is the main reason for dismissal and if it also finds that the employer acted reasonably in treating this reason as sufficient to justify dismissal. For further information, see A Guide to the 2006 TUPE Regulations.

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Dismissal for refusing to do shop or betting work on a Sunday

Legislation gives shop and betting workers the right not to be dismissed, selected for redundancy or subjected to other detrimental treatment for refusing or proposing to refuse to do work on Sundays. There is no qualifying period of service for employees who wish to complain that they have been dismissed for this reason. This protection came into force in England and Wales on 26 August 1994 for shop workers and 3 January 1995 for betting workers and in Scotland, both for shop and for betting workers, on 6 April 2004. It does not apply to those employed to work only on Sundays.

In England and Wales, employees who were employed at the time the legislation came into force and have remained with the same employer since then generally have these rights automatically. Employees in England and Wales whose contracts cannot require them to work on Sundays also have these rights automatically. Employees in England and Wales who, after the legislation came into force, enter into a contractual agreement to do shop or betting work on Sundays, either by formally "opting in" to Sunday working or by taking up a new job which requires Sunday working, can generally qualify for these rights by "opting-out" of Sunday working, subject to a three month notice period.

In Scotland, only employees whose contract cannot require them to work on Sundays have these rights automatically. Other employees in Scotland can qualify for them by "opting-out" of Sunday working, subject to a three month notice period.

For further information see Sunday shop and betting work: employees rights.

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Dismissal relating to activities as an occupational pension scheme trustee

A dismissal will be held to be unfair if the main reason for it is that an employee who is a trustee of a relevant occupational pension scheme has performed, or has proposed to perform, any functions as such a trustee. There is no qualifying period of service for employees who wish to complain that they have been dismissed for these reasons. It is also unlawful for an employer to subject an employee to any other detrimental treatment for these reasons.

A "relevant occupational pension scheme" means an occupational pension scheme (as defined in section 1 of the Pension Schemes Act 1993) established under a trust.

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Dismissal relating to activities as an employee representative

A dismissal will be held to be unfair if the main reason relates to an employee's status or actions as a representative for consultation about redundancies or business transfers, or as a candidate to be a representative of this kind, or to their participation in the election of such a representative. Further details can be found in the documents Redundancy consultation and notification - Guidance and A Guide to the 2006 TUPE Regulations. There is no qualifying period of service for employees who wish to complain that they have been dismissed for a reason described in this section. It is also unlawful for an employer to subject an employee to any other detrimental treatment on these grounds.

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Dismissal relating to the Transnational Information and Consultation of Employees Regulations 1999

The Transnational Information and Consultation of Employees Regulations 1999 (Statutory Instrument 1999 no.3323, available from The Stationery Office) implement in the United Kingdom the European Works Council Directive, which sets out requirements for informing and consulting employees at the European level, in undertakings or groups with at least 1000 employees across the member states and at least 150 employees in each of two or more of those member states. An employee will be held to be unfairly dismissed (or selected for redundancy) if he or she was, within the meaning of these regulations, a member of a special negotiating body or a European Works Council, an information and consultation representative or a candidate to be such a member or representative, and the reason or the main reason for the redundancy or dismissal was that he or she performed or proposed to perform any functions or activities as such a member, representative or candidate, or that he or she (or a person acting for them) made a request or proposed to make a request for reasonable time off to perform such functions and to be paid for doing so.

There is additional protection against dismissal for any employees who take proceedings in good faith to an employment tribunal to enforce their rights under these regulations, or who take certain actions in relation to the procedures governed by the regulations.

There is no qualifying period of service for employees who wish to complain that they have been dismissed for a reason described in this section. It is also unlawful for an employer to subject an employee to any other detrimental treatment on these grounds.

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Dismissal on the grounds of trade union recognition

Employees will be held to be unfairly dismissed (or selected for redundancy) if the reason, or the main reason, for the dismissal is that they:

  • acted with a view to obtaining or preventing recognition of a union (or unions) by the employer under Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 (as inserted by Schedule 1 of the Employment Relations
    Act 1999);

  • indicated that they supported or did not support recognition of a union (or unions) under that Schedule;

  • acted with a view to securing or preventing the ending under that Schedule of bargaining arrangements;

  • indicated that they supported or did not support the ending under that Schedule of bargaining arrangements;

  • influenced or sought to influence the way in which votes were to be cast by other workers in a ballot arranged under that Schedule;

  • influenced or sought to influence other workers to vote or to abstain from voting in such a ballot;

  • voted in such a ballot; or

  • proposed to do, failed to do, or proposed to decline to do, any of the things referred to above;

unless the relevant act or omission of the employee was unreasonable.

Employees can make an application for interim relief to an employment tribunal if they consider that the reason or principal reason for their dismissal was one of the above. There is no qualifying period of service for employees who wish to complain that they have been dismissed for these reasons. It is also unlawful for an employer to subject workers to a detriment for these reasons by any act or by any deliberate failure to act.

See the Trade Unions page.

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Dismissal in connection with disciplinary and grievance hearings

Legislation provides that workers are entitled to be accompanied at certain disciplinary and grievance hearings by a fellow worker or a trade union official of their choice, provided they make a reasonable request to be accompanied. They also have the right to a reasonable postponement of the hearing, within specified limits, if a chosen companion is not available at the time proposed for the hearing by the employer.

Workers have the right to take time off during working hours in order to accompany fellow workers who are employed by the same employer. Workers will be unfairly dismissed (or selected for redundancy), regardless of length of service, if their employer dismisses them:

  • for exercising or seeking to exercise the right to be accompanied; or

  • for accompanying or seeking to accompany a worker.

It is also unlawful for an employer to subject a worker to any other detrimental treatment on these grounds.

The rights apply both to employees and to other workers such as agency workers and home workers, though not to those who are in business solely on their own account. For further information see the Acas Code of Practice on disciplinary and grievance procedures.

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Dismissal relating to the national minimum wage

Employees will be unfairly dismissed (or selected for redundancy) if the reason, or the main reason, is that:

  • they took (or proposed to take) any action with a view to enforcing a right conferred by the National Minimum Wage Act 1998; or

  • their employer was prosecuted as a result of such action; or

  • they qualify, or will or might qualify, for the national minimum wage.

There is no qualifying period of service for employees who wish to complain that they have been dismissed for one of these reasons.

While only employees can complain of unfair dismissal, workers who are not employees can complain to an employment tribunal that they have suffered a detriment if their contracts are terminated for any of these reasons, compensation being awarded on the same basis as for unfair dismissal. Both employees and workers who are not employees are also protected from detrimental action or deliberate inaction by their employer falling short of dismissal or termination of contract.

For further information, see A detailed guide to the national minimum wage which is obtainable by calling 0845 8450 360.

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Dismissal relating to the Working Time Regulations 1998

Broadly, the Regulations provide workers with the right to paid leave, rest periods and breaks, as well as limiting the average hours per week which they can be required to work.

Workers who are employees will be held to be unfairly dismissed (or selected for redundancy) if the reason, or the main reason, for the dismissal is that they:

  • refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the Regulations;

  • refused (or proposed to refuse) to forgo a right conferred by the Regulations;

  • failed to sign a workforce agreement or to make, vary or continue any other agreement provided for in the Regulations; or

  • performed (or proposed to perform) any functions or activities as a workforce
    representative for the purposes of the Regulations, or as a candidate to be such a representative.

There is no qualifying period of service for employees who wish to complain that they have been dismissed for one of these reasons.

Workers who are not employees can complain to an employment tribunal that they have suffered a detriment if their contracts are terminated for any of these reasons, or for seeking to assert any rights conferred on them by the Regulations, compensation being awarded on the same basis as for unfair dismissal. Both employees and workers who are not employees are also protected from detrimental action or deliberate inaction by their employer falling short of dismissal or termination of contract.

For further information, see Your guide to the Working Time Regulations.

 

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