Unfairly dismissed? Part B

URN No: 07/828/A2

Contents

Interim relief

Employees may make an application to an employment tribunal for interim relief if they consider that the reason or principal reason for their dismissal was

  • trade union membership, trade union non-membership, trade union activities or proposed activities, or use or proposed use of trade union services;
  • failure to accept an unlawful inducement by an employer to relinquish trade union rights or to disapply collective agreements;
  • failure to accept an offer made by an employer to induce the employee to be a trade union member;
  • 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;
  • that they performed, or proposed to perform, any functions they had as health and safety representatives or committee members or as employees designated to carry out workplace health and safety activities;
  • that they performed or proposed to perform any functions they had as an occupational pension scheme trustee;
  • that they performed or proposed to perform any functions they had as an employee representative for consultation about redundancy or business transfers or as a candidate to be a representative of this kind, or that they participated in the election of such a representative;
  • that they performed or proposed to perform any functions they had as a representative of members of the workforce or as a candidate to be a representative of this kind for the purposes of the Working Time Regulations 1998;
  • that they made a protected disclosure within the meaning of the Public Interest Disclosure Act 1998;
  • that they exercised or sought to exercise rights relating to trade union recognition procedures;
  • that they exercised or sought to exercise the right to be accompanied to a disciplinary or grievance hearing or that they accompanied or sought to accompany a fellow worker to such a hearing; or
  • from 1 October 2006, that they exercised or sought to exercise the right to be accompanied to a meeting to discuss a request not to retire or that they accompanied or sought to accompany a fellow employee to such a meeting.

If the tribunal considers it likely that at the full hearing it will uphold the complaint for any of those reasons, the tribunal will either order reinstatement or re-engagement or will make an order for the temporary continuation of the contract of employment.

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Closed shop

A closed shop is an agreement or arrangement between an employer and a trade union which requires certain employees to be members of the union. The requirement to be a union member is not always contained in a formal written agreement and may be a matter of custom or practice. There is no statutory protection for the closed shop and it cannot be enforced against employees or prospective employees. Dismissal of any employee for not belonging to a union is automatically unfair, irrespective of whether or not they work in a so called 'closed shop'.

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Dismissal on 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 hasn't properly notified her of the date it ends and she reasonably believes it hasn't ended; or
  • her employer has given her less than 28 days' notice of the date it ends and it isn't reasonably practical 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 relating 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 Working fathers - rights to leave and pay: a guide for employers and employees.

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Dismissal relating 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 length of service if the reason or 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 for these reasons. Further information can be found in the document Flexible working: The right to request and the duty to consider: guidance for employers and employees.

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Dismissal without following statutory dismissal and disciplinary procedures

Where statutory dismissal and disciplinary procedures apply, and the employer is not treated as having complied with them, it will be unfair to dismiss an employee without their having been followed, if failure to follow them is wholly or mainly the fault of the employer. Employees who wish to complain that they have been unfairly dismissed for this reason must have completed one year's continuous employment at their effective date of termination (see Continuous employment and Effective date of termination).

The statutory procedures do not have to be followed in certain circumstances, for instance in some collective redundancies, in industrial action dismissals, in constructive dismissals and in retirement dismissals. There are also circumstances in which the procedures are treated as having been followed even though they have not been. For further information see Resolving disputes web page.

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Dismissal relating to jury service

Employees will be unfairly dismissed (or selected for redundancy) if the reason, or the principal reason, is that they have been summoned for jury service or have been absent from work on jury service. There is no qualifying period of service for employees who wish to complain that they have been dismissed for these reasons. This protection will not apply, however, if the employer shows that the employee's absence will cause substantial injury to his business and makes this known to the employee, who nevertheless unreasonably refuses, or fails, to apply to be excused from jury service deferred.

Employees are also protected against detrimental action or deliberate inaction by their employer because they have been summoned for jury service or have been absent from work on jury service. However, the protection does not cover failure to pay remuneration during absence on jury service unless the employee's contract of employment entitles him to be paid during such an absence.

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Dismissal relating to The Information and Consultation of Employees Regulations 2004

The Information and Consultation of Employees Regulations 2004 (Statutory Instrument 2004 no.3426, available from the Stationery Office) implement in Great Britain the Information and Consultation Directive. The Regulations set out requirements for informing and consulting employees in undertakings with at least 50 employees. The Regulations will initially apply to undertakings with 150 employees (April 2005) and then to undertakings with 100 employees (April 2007) and eventually to undertakings with 50 employees (April 2008).

An employee will be held to be unfairly dismissed if he or she was acting as a representative of employees in connection with an agreement struck under the Regulations. Employees are also protected when standing as candidates to be such representatives under the Regulations.

The protections apply where the reason or the main reason for the redundancy or dismissal was that the employee performed or proposed to perform any functions or activities as such a representative or candidate, or that the employee (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 or who apply, complain or appeal to the Central Arbitration Committee or the Employment Appeal Tribunal under these 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.

For further information, see Information and Consultation web page.

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Dismissal relating to The European Public Limited-Liability Company Regulations 2004

The European Public Limited-Liability Company Regulations 2004 (Statutory Instrument 2004 no.2326, available from the Stationery Office) implement in Great Britain the Directive on employee involvement (2001/86/EC), which supplements the European company Statute. The Regulations came into force on 8th October 2004.

The Statute creates a legal framework for a new corporate entity, the European Company or "Societas Europea" (SE), available to companies operating in more than one Member State. The supplementary Directive provides for employee involvement (information, consultation and possibly participation arrangements) in the SE. In the first instance the arrangements are to be negotiated between the management and the employees, acting through a Special Negotiating Body (SNB). If a voluntary agreement is not reached, then certain "standard" rules will apply, provided management wants to carry on with registration of an SE.

Unfair dismissal provisions under these Regulations cover any employee acting as a member of the SNB (or other representative body), an information and consultation representative, or an employee representative on the company board. Employees are also protected when standing as candidates to be such representatives under the Regulations.

An employee will be regarded as being unfairly dismissed where the reason or the main reason for the redundancy or dismissal was that the employee performed or proposed to perform any functions or activities as such a representative or candidate, or that the employee (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 or who apply, complain or appeal to the Central Arbitration Committee or the Employment Appeal Tribunal under these 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 Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006

The Regulations (Statutory Instrument 2006 no.349, available from the Stationery Office) prohibit the making of major changes to occupational pension schemes unless the scheme’s members are consulted beforehand. They initially apply to undertakings with 150 employees (from April 2006), then to undertakings with 100 employees (from April 2007) and eventually to undertakings with 50 employees (from April 2008).

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

  • performed or proposed to perform any functions or activities under the Regulations;
  • exercised their entitlement to take paid time off during working hours to perform such functions;
  • made or proposed to make a request to exercise such an entitlement (or that someone acting on their behalf did so);
  • sought to enforce their rights under the Regulations before an employment tribunal;
  • complained or proposed to complain to the Pensions Regulator about specified breaches of the Regulations;
  • stood as a candidate in an election under the Regulations, voted in such an election, sought to influence its outcome by lawful means, expressed doubts about its conduct or proposed to do, failed to do or proposed to decline to do any of these things.

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 European Cooperative Society (Involvement of Employees) Regulations 2006

The Regulations (Statutory Instrument 2006 no.2059, available from the Stationery Office) set out provisions relating to the European Cooperative Society, a new form of cooperative which can operate across the European Economic Area on the basis of registration in one member state.

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

  • performed or proposed to perform functions or activities under the Regulations;
  • exercised their entitlement to take paid time off during working hours to perform such functions;
  • made or proposed to make a request to exercise such an entitlement (or that someone acting on their behalf did so);
  • sought to assert their rights under the Regulations before an employment tribunal or by applying or complaining to the Central Arbitration Committee or the Appeal Tribunal;
  • did anything to support or oppose the creation of a body or procedure under the Regulations, or indicated that they did or did not support its creation;
  • stood as a candidate in an election under the Regulations, voted in such an election, sought to influence its outcome by lawful means, expressed doubts about its conduct or proposed to do, failed to do or proposed to decline to do any of these things.

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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Retirement

Since 1 October 2006, when the Employment Equality (Age) Regulations 2006 came into force, retirement has been a potentially fair reason for dismissal. As with other reasons for dismissal, the employer must show what the reason for the dismissal is. The circumstances where retirement will be the only reason for the dismissal are where:

  • the intended retirement date is on or after the employee’s 65th birthday, or on or after the employer’s normal retirement age (provided that, if the normal retirement age is below 65, it is objectively justified);
  • the employer has notified the employee of the date on which it is intended to retire him or her within the specified time, and of his or her right to request not to retire on that date;
  • the employer has then considered any such request, including meeting with the employee to discuss the request, in accordance with the specified procedure;
  • the retirement takes place on the intended date of retirement.

For further information see the Acas website.

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Dismissal in connection with meetings to discuss requests not to retire

Since 1 October 2006, an employee has been entitled to be accompanied by a fellow worker at a meeting to discuss a request not to be retired, or an appeal against the refusal of such a request, provided he makes a reasonable request to be accompanied. An employee may also postpone the meeting for up to seven days to a time convenient for employer, employee and companion, if a chosen companion is not available. Workers have the right to take time off during working hours in order to accompany employees who are employed by the same employer.

An employee will be unfairly dismissed (or, from 6 April 2007, selected for redundancy), regardless of length of service, if an employer dismisses him:

  • for exercising or seeking to exercise the right to be accompanied; or
  • for accompanying or seeking to accompany an employee.

Employees are also protected against any other detrimental treatment on these grounds, as are workers who are not employees.

For further information see the Acas website.

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Dismissal during an industrial dispute

It is automatically unfair to dismiss workers for taking legally organised official industrial action lasting twelve weeks or less. It is also unfair to dismiss them where they have taken action for more than twelve weeks if the employer has not first taken such procedural steps as are reasonable to resolve the dispute. It will be for the employment tribunals to determine whether an employer has taken all reasonable steps, and in doing so, they will have regard to the behaviour of both the employer and the union. For further information, see Industrial action and the law: a guide for employees, trade union members and others.

Otherwise, subject to the exceptions listed below, an employment tribunal has no jurisdiction to determine a complaint of unfair dismissal from an employee dismissed while participating in official industrial action provided his or her employer:

  • has dismissed all who were taking part in the action at the same establishment as the complainant at the date of his or her dismissal; and
  • has not offered re-engagement to any of them within three months of their date of dismissal without making him or her a similar offer.

Likewise (again, subject to the exceptions listed below), an employment tribunal has no jurisdiction to determine a complaint of unfair dismissal from an employee dismissed while participating in unofficial industrial action.

The exceptions are that an employment tribunal can determine a complaint of unfair dismissal from an employee dismissed while participating in official or unofficial industrial action if the reason or main reason for the dismissal was:

  • the taking by the employee of certain specified types of action on health and safety grounds (see Dismissal for taking action on health and safety grounds);
  • on maternity related grounds (see Dismissal on the grounds of pregnancy or maternity);
  • in respect of the taking by the employee of certain specified types of action as an employee representative or as a candidate to become an employee representative, or of the participation of the employee in the election of such a representative (see Dismissal relating to activities as an employee representative); or
  • that the employee exercised rights under the Working Time Regulations 1998 (see Dismissal relating to the Working Time Regulations 1998); or
  • that the employee exercised rights prescribed in the Maternity and Parental Leave etc Regulations 1999 (see Dismissal relating to parental leave, Dismissal relating to time off for dependants, Dismissal on the grounds of pregnancy and maternity); or
  • for reasons related to paternity or adoption leave (see Dismissal related to paternity leave and Dismissal related to adoption leave; or
  • that the employee asserted the right to time off for dependants (see Dismissal relating to time off for dependants); or
  • for reasons related to the right to request flexible working arrangements (see Dismissal relating to the right to request flexible working arrangements); or
  • that the employee had been summoned for jury service or had been absent from work on jury service (see Dismissal relating to jury service).

An employment tribunal can also determine a complaint of unfair dismissal from an employee dismissed while participating in unofficial industrial action if the reason or main reason for the dismissal was that the employee made a protected disclosure within the meaning of the Public Interest Disclosure Act 1998 (see Dismissal for making a public interest disclosure).

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Dismissal on grounds of unlawful discrimination

Where dismissed employees have made a complaint under the legislation relating to discrimination on grounds of sex, race, disability, religion or belief, sexual orientation or age, and are also eligible to make a complaint of unfair dismissal they should do so, even if it is thought that the reason for dismissal was an unlawful act of discrimination.

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Continuous employment

An employee's period of employment is presumed to have been continuous unless there is evidence to the contrary. In most cases there will be no doubt as to whether or not an employee has worked for long enough to gain the right to complain of unfair dismissal. If an employee is doubtful that his or her employment has been continuous, and further information is needed on what is and what is not continuous employment, this can be gained from Continuous employment and a week's pay - Guidance.

Note: The period spent by trainees on certain (but not all) Government training schemes does not count towards a period of continuous employment because the trainees are not employees (that is, they are not working under a contract of employment). Further information and advice on this point may be obtained from the Advisory, Conciliation and Arbitration Service (Acas).

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Effective date of termination

The effective date of termination will be established in the following manner:

  • if either the employer or the employee gave notice and the employee worked through the notice period, then the effective date is the date on which that notice expires (but see the exceptions below);
  • if the contract was terminated without notice by the employer (except in cases where the employer should have given notice as required by law, when, for certain purposes, the effective date is the date that notice would have expired) the effective date is the day on which the employee was dismissed;
  • if the employee has received a payment in lieu instead of working part or all of the notice period, then the effective date is generally the last day on which the employee worked for the employer;
  • if the contract was terminated with or without notice by the employee then the effective date is the last day on which the employee worked for the employer (but see the exception below);
  • in the case of the expiry without renewal of a limited-term contract, the effective date is the date of expiry. A limited-term contract is a contract for a fixed term or the performance of a specific task, or one which ends when a specified event does or does not occur.

However, for the purpose of determining whether an employee has worked a sufficient qualifying period of continuous employment to make a complaint of unfair dismissal, and for certain other purposes (but not for the purpose of the time-limit within which a complaint must be made), there are two exceptions:

  • in cases where the employer has given shorter notice than that required by law, the effective date is the date the longer required notice would have expired if it had been given;
  • in cases where the employee terminated the contract of employment and where the employer had not already given notice the effective date will normally be the date of expiry of the statutory minimum notice period, which the employer would have had to give if he or she had dismissed the employee on the same day as the employee resigned.

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