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Unfairly dismissed? Part A

URN No: 07/828/A1

Contents

• Introduction
• Meaning of dismissal 

Introduction

Legislation gives most employees the right not to be unfairly dismissed.

This document outlines the unfair dismissal provisions and explains how complaints are dealt with. It gives general guidance only and should not be regarded as a complete or authoritative statement of the law.

Employees who believe that they were dismissed solely or mainly because an undertaking or part of an undertaking has been transferred from one employer to another should also see A guide to the 2006 TUPE Regulations and, for those who believe that their dismissal was on the grounds of their trade union membership or activities or their non-membership of a trade union, the document Union membership: rights of members and non-members.

Employees who believe their dismissal was unlawful because of sex or race discrimination should also consult the Guides to the Sex Discrimination Act or the Race Relations Act. These booklets are available free of charge from Jobcentre Plus offices.

Employees who believe their dismissal was unlawful because of disability discrimination should consult The Disability Discrimination Act 1995: what employees and job applicants need to know (DLE 3), which is available from the Disability Rights Commission Helpline on 08457 622 633 or textphone 08457 622 644.

Employees who believe that their dismissal was unlawful because of discrimination on grounds of religion or belief, sexual orientation or age should consult the relevant guidance on the Advisory, Conciliation and Arbitration Service (Acas) website.

Further information about unfair dismissal can also be obtained from Acas.

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Meaning of dismissal

Dismissal is defined as the termination of employment by:

• the employer, with or without notice; or
  
• the employee's resignation, with or without notice, where the employee has resigned because the employer by his or her conduct, in breach of the contract of employment, has shown an intention not to be bound by the contract (this is commonly known as 'constructive dismissal') or
  
• the expiry of a limited-term contract without its renewal. 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.  
  If, after being given notice of dismissal by the employer, an employee gives due notice, in writing or otherwise, to terminate the contract of employment at an earlier date than required by the employer, the employee will still be regarded as dismissed by the employer but the effective date of termination will be the date that the employee's own notice, rather than the employer's notice, takes effect.

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Who can complain of unfair dismissal?

Most employees have the right to complain of unfair dismissal to an employment tribunal but there are certain exceptions. A complaint to an employment tribunal must be made by the individual who was dismissed, but if the employee dies a personal representative of the deceased can make the application to the tribunal or continue proceedings already started. An 'employee' is an individual who has entered into, works or worked under a contract of employment. A contract of employment is a contract of service or apprenticeship. Its terms may be expressed in writing or orally, or may be implied.

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Who cannot 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 free-lance 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 Dismissal relating to the National Minimum Wage,
  
  Dismissal relating to the Working Time Regulations 1998,
  
  Dismissal for making a public interest disclosure,
  
  Dismissal in connection with disciplinary and grievance hearings and,
  
  Dismissal relating to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000)
  
  
• employees who have not completed one year's continuous employment (see Continuous employment) at their effective date of termination (see Effective date of termination). This qualification is reduced to four weeks where an employee is dismissed on medical grounds in consequence of certain health and safety requirements or recommendations;
  
  
• 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;
  
  
• 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 covered by a dismissal procedures agreement which has been exempted from the unfair dismissal provisions by an Order made by the Secretary of State for Employment.
  
  
  Note: In the following types of case, employees may make a complaint regardless of their length of service:
  
  
• dismissal for trade union membership, non-membership of a trade union, trade union activities or proposed trade union activities, or use or proposed use of  trade union services;
  
  
• dismissal for failure to accept an unlawful inducement by an employer to relinquish trade union rights or to disapply collective agreements;
  
  
• dismissal for failure to accept an offer made by an employer to induce the employee to be a trade union member;
  
  
• dismissal for 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;
  
  
• dismissal for having sought, in good faith, to exercise a statutory employment protection right;
  
  
• dismissal for taking, or proposing to take, certain specified types of action on health and safety grounds.
  
  
• dismissal on maternity related grounds.
  
  
• dismissal related to paternity leave
  
  
• dismissal related to adoption leave
  
  
• dismissal on grounds related to the right to request flexible working arrangements
  
  
• dismissal of a shop worker or betting worker for refusing, or proposing to refuse, to do shop work or betting work on Sundays or for giving or proposing to give an opting-out notice to his or her employer
  
  
• dismissal for performing, or proposing to perform, any duties relating to an employee's role as an employee occupational pension scheme trustee
  
  
• dismissal for qualifying for the national minimum wage or seeking to enforce a right to it (or because the employer was prosecuted as the result of enforcement action taken by the employee)
  
  
• dismissal for exercising rights under the Working Time Regulations 1998
  
  
• dismissal for making a protected disclosure within the meaning of the Public Interest Disclosure Act
  1998
  
  
• dismissal for performing, or proposing to perform, any duties relating to an employee's role as an employee representative or as a candidate to be a representative of this kind or for participating in the election of such a representative
  
  
• dismissal for reasons relating to the Tax Credits Act 2002
  
  
• dismissal for taking or seeking to take parental leave
  
  
• dismissal for taking or seeking to take time off for dependants
  
  
• dismissal for taking lawfully organised official industrial action lasting twelve weeks or less (or more than twelve weeks, in certain circumstances).
  
  
• dismissal on grounds related to trade union recognition procedures;
  
  
• dismissal in connection with disciplinary and grievance hearings;
  
  
• dismissal 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;
  
  
• dismissal on grounds related to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000;
  
  
• dismissal on grounds relating to the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002;
  
  
• dismissal on grounds relating to the European Public Limited-Liability Company Regulations 2004;
  
  
• from 6 April 2005, dismissal on grounds 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);
  
  
• dismissal on grounds relating to jury service;
  
  
• from 6 April 2006, dismissal on grounds 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);
  
  
• dismissal on grounds 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 1 October 2006, dismissal in connection with a meeting to discuss a request not to retire.
  

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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 significant breach of the employment contract indicating that he or she intends no longer to be bound by one or more terms of 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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Fair dismissal

Dismissal of an employee will only be fair if the employer can show that the reason for it was one of those listed below (but see Dismissal on the transfer of an undertaking) and, except where the reason for dismissal is the retirement of the employee, the tribunal is satisfied that the employer acted reasonably in the circumstances (including the size and administrative resources of the undertaking) in treating that reason as sufficient to justify dismissing the employee.

The reasons are:

• a reason related to the employee's capability or qualification for the job;
   
• a reason related to the employee's conduct;
  
• from 1 October 2006, the retirement of the employee; 
   
• redundancy (broadly, this is where the employer's need for employees to do certain work has ceased or diminished or is expected to do so);
   
• a statutory restriction on either the employer or the employee which prevents the employment being continued;
   
• some other substantial reason which could justify the dismissal.

In deciding whether the employer acted reasonably in dismissing the employee the tribunal will take account, amongst other factors, of whether he or she followed appropriate disciplinary procedures.

Where statutory dismissal and disciplinary procedures apply and are not treated as having been complied with, a dismissal will be unfair if an employee is dismissed without the statutory procedure having been followed (see Dismissal without following statutory dismissal and disciplinary procedures, and the Resolving Disputes web page).

From the same date, however, if an employer fails to follow a disciplinary procedure which goes beyond the statutory procedure, that failure will not by itself make the dismissal an unfair one - provided that properly following the procedure would have made no difference to the decision to dismiss, and that the dismissal was fair in all other respects.

Where retirement is shown to be the reason for dismissal, whether the dismissal is fair will depend on whether the employer complied with the duty to consider working beyond retirement (see Retirement).

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Dismissal on the transfer of an undertaking

When an undertaking or part of an undertaking has been transferred from one employer to another (for example, through the sale of the undertaking or part of the undertaking), the regulations on the transfer of undertakings may apply. Under these regulations, if an employee is dismissed, by either the old or the new employer because of the transfer or a reason connected with it, the dismissal will be considered unfair unless it was for an economic, technical or organizational reason entailing changes in the workforce. If the dismissal was for such a reason it will be fair only if a tribunal decides that the employer acted reasonably in the circumstances in dismissing the employee. For further information see A guide to the 2006 TUPE Regulations.

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Unfair selection for redundancy

Dismissal on grounds of redundancy will be unfair if:

the employee was selected for redundancy when others in similar circumstances were not selected, and the reason for this was:

• trade union membership, trade union non-membership, trade union activities or proposed trade union 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 the employee had sought, in good faith, to exercise a statutory employment protection right;
   
• that the employee took, or proposed to take, certain specified types of action on health and safety grounds;
   
• the employee was selected for redundancy on maternity related grounds;
   
• the employee was selected for redundancy for taking or seeking to take paternity leave;
   
• the employee was selected for redundancy for taking or seeking to take adoption leave;
   
• the employee was selected for redundancy for requesting flexible working arrangements;
   
• the employee was a shop worker or a betting worker and was selected for redundancy for refusing or proposing to refuse to do shop work or betting work on Sundays or he was selected for redundancy for giving, or proposing to give an 'opting-out' notice to his employer;
   
• 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;
   
• 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;
   
• the employee was chosen for redundancy for reasons relating to the national minimum wage;
   
• the employee was chosen for redundancy for reasons relating to the Working Time Regulations 1998;
   
• the employee was chosen for redundancy for making a protected disclosure within the meaning of the Public Interest Disclosure Act 1998;
   
• 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;
   
• the employee was chosen for redundancy because they took lawfully organised official industrial action lasting twelve weeks or less (or more than twelve weeks, in certain circumstances);
   
• that the employee exercised or sought to exercise rights relating to trade union recognition procedures;
   
• that 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;
   
• that the employee was chosen for redundancy for reasons relating to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000;
   
• that the employee was chosen for redundancy for reasons relating to the Tax Credits Act 2002;
   
• that the employee was chosen for redundancy for reasons relating to 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;
   
• 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); 
   
• that the employee was chosen for redundancy for reasons relating to jury service;

• from 6 April 2006, that 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);

• that 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, that 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). 

Furthermore, dismissal on the grounds of redundancy may also be held to be unfair (depending upon the circumstances) for some other reason (for example, if the employer failed to give adequate warning of redundancy or failed to consider alternative employment for the employee).

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Dismissal relating to trade union membership, activities and related matters or non-membership of a union

A dismissal will be held to be unfair if the reason, or the main reason for it was:

• that 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, or had made use, or proposed to make use, of its services, if the activities or services were outside working hours or in accordance with an arrangement with the employer permitting the employee to take part in such activities, or make use of its services, 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.

A dismissal will also be held to be unfair if the reason, or the main reason for it was:

• that the employee failed to accept an unlawful inducement made by the employer to relinquish his or her trade union rights or to disapply collective agreements, or failed to accept an offer made by an employer to induce him or her to be a trade union member;
  
• that the employee refused to make a payment (e.g. to a union or charity) in lieu of union membership, or objected to his or her employer deducting a sum from their wages or salary to make such a payment.

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

Both employees and workers who are not employees are also protected against detriment 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.

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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, 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 activities as an occupational pension scheme trustee

Employee occupational pension fund trustees have the right to reasonable paid time off for the performance of their duties and to undergo training.

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

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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 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.

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 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 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 main 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;
   
• action short of dismissal on trade union grounds;
   
• time off for trade union duties and activities;
   
• dismissal, selection for redundancy or other detrimental action for refusing or proposing to refuse to do shop work or betting work on Sunday;
   
• 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.

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.

Similar protection is provided for where action is taken to enforce an employee's right to the national minimum wage or working tax credit or where an employee takes certain actions under the Transnational Information and Consultation of Employees Regulations 1999,the European Public Limited-Liability Company Regulations 2004, 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.

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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. 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 - Employee's rights.

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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 their participation in the election of such a representative. Further details can be found in Redundancy notification and consultation 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 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 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.

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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. 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 working time regulations.

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Dismissal for making a public interest disclosure

The Public Interest Disclosure Act 1998 provides protection for 'whistleblowers' - workers who are dismissed or victimised as a result of making a qualifying disclosure. It applies both to employees, whose dismissal (or selection for redundancy) will be held to be unfair if it is wholly or mainly for making a disclosure within the meaning of the Act, and to workers who are not employees, who can complain to an employment tribunal that they have suffered a detriment if their contracts are terminated for making such a disclosure, 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.

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.

For further information, see Disclosures in the public interest: Protections for workers who 'blow the whistle' - Guidance.

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Dismissal relating to the Tax Credits Act 2002 

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 are entitled, or will or may be entitled, to working tax credit; or
• that they took (or proposed to take) any action with a view to enforcing or otherwise securing a right conferred by regulations under the Tax Credits Act 2002; or
• that their employer was prosecuted or fined as result of such action.

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

This protection applies to individuals who are employees within the meaning of the Employment Rights Act 1996. It is also unlawful for an employer to subject such employees to any other detrimental treatment. In addition, individuals who are not employees within the meaning of the 1996 Act, but who are employees within the meaning of the Tax Credits Act 2002, are protected against detrimental treatment (including the termination of their contracts).

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Dismissal relating to parental leave

The Maternity and Parental Leave etc. Regulations 1999 give employees the right not to be dismissed where the reason, or the main reason is that they:

• took or sought to take parental leave etc.;
• declined to sign a workforce agreement for the purposes of the Regulations;
• 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 for the purposes of the Regulations.

There is no qualifying period of service for employees who wish to complain that they have been dismissed for one of these reasons. It is also unlawful for an employer to subject an employee to any other detrimental treatment for any of these reasons.

Further details can be found in Parental Leave - a short guide  and Parental Leave - a guide for employers and employees.

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Dismissal relating to time off for dependants

The Maternity and Parental Leave etc. Regulations 1999 give employees the right not to be dismissed where the reason, or the main reason is that they exercised their right to take a reasonable amount of time off work to deal with certain situations involving a dependant.

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

Further details can be found in Family emergency? Your right to time off and Time off for dependants - a guide for employers and employees.

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Dismissal relating to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000

Broadly, the aim of the Regulations is to ensure that part-time workers are treated no less favourably in their working conditions than comparable full-timers, unless the less favourable treatment is justified on objective grounds. Part-time workers who believe that they have been treated in a manner which infringes the Regulations have the right to make a request in writing to receive, within twenty-one days, a written statement from their employer giving the reasons for the treatment.

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

• they exercised or sought to enforce rights under the Regulations, refused to forgo them or alleged that the employer had infringed them; requested a written statement; or that
• they gave evidence or information in connection with proceedings brought by an employee under the Regulations; or that
• the employer believed the employee intended to do any of these things.

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 treatment for these reasons which falls short of dismissal or termination of contract.

For more information on the rights of part-time workers see the Part-time web page.

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Dismissal relating to the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002

The aim of the Regulations is to ensure that fixed-term employees are not treated less favourably than comparable permanent employees on the grounds that they are fixed-term employees, unless this is objectively justified. Fixed-term employees who believe that they have been treated in a manner which infringes the Regulations have the right to make a request in writing to receive, within 21 days, a written statement from their employer giving reasons for the treatment.

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

• they exercised or sought to enforce rights under the Regulations, refused to forgo them or alleged that the employer had infringed them; requested a written statement; or that
• they gave evidence or information in connection with proceedings brought by an employee under the Regulations; or that
• they performed or proposed to perform any functions or activities as a representative of the workforce for the purposes of a workforce agreement under the Regulations, or a candidate to become such a representative, or declined to sign such an agreement; or that
• the employer believed the employee intended to do any of these things.

Employee are also protected from detrimental treatment which falls short of dismissal for these reasons.

Further details can be found in Fixed-term work - a guide to the regulations.

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