EMPLOYMENT
LEGISLATION
INDIVIDUAL RIGHTS OF EMPLOYEES: A GUIDE FOR EMPLOYERS AND
EMPLOYEES - PL 716 (REV 11)
Dismissal and notice
periods
Written reasons for dismissal
Employee who are
dismissed and have completed at least one year’s continuous
employment are entitled to receive, on request (orally or in
writing), a written statement of reasons for dismissal within 14
days. An employee dismissed during:
- her
pregnancy or her ordinary or additional maternity leave
- his
or her ordinary or additional adoption leave
is entitled to a
written statement of the reasons regardless of his or her length of
service and regardless of whether or not he or she has requested it.
There are
further details about the written reasons for dismissal provisions
in the document Rights to notice
and reasons for dismissal (PL707).
Notice of termination
Both the
employer and employee are normally entitled to a minimum period of
notice of termination of employment. After one month's employment,
an employee must give at least one week's notice; this minimum is
unaffected by longer service. An employer must give an employee at
least one week's notice after one month's employment, two weeks
after two years, three weeks after three years and so on up to 12
weeks after 12 years or more. However, the employer or the employee
will be entitled to a longer period of notice than the statutory
minimum if this is provided for in the contract of employment.
Most employees,
subject to certain conditions, are entitled to certain payments
during the statutory notice period.
Employees can
waive their right to notice or to payment in lieu of notice;
employers can also waive their right to notice. Either party can
terminate the contract of employment without notice if the conduct
of the other justifies it.
Further details
about notice provisions can be found in the document Rights to notice
and reasons for dismissal (PL707).
Unfair dismissal
Employees have
the right not to be unfairly dismissed. In most circumstances they
must have at least one year's continuous service before they have
this right. However, there is no length of service requirement in
relation to a number of 'automatically unfair grounds' (see below).
Also, the requirement is reduced to one month for employees claiming
to have been dismissed on medical grounds as a consequence of
certain health and safety requirements that should have led to
suspension with pay rather than to dismissal.
A complaint of
unfair dismissal must be received by an employment tribunal
within three months of the effective date of termination of
the employment (usually the date of leaving the job) unless the
tribunal considers this was not reasonably practicable. However,
from 1 October 2004 the time limit for submitting some tribunal
claims will also be extended in certain circumstances to allow
statutory minimum dismissal, disciplinary and grievance procedures
to be followed.
If both the
employer and employee agree, instead of going to an employment
tribunal, the case may be heard by an arbitrator under the Acas
Arbitration Scheme. For further details, see section The
Acas Arbitration
Scheme.
When hearing the
complaint, a tribunal will first need to establish that a dismissal
has taken place. Once dismissal is established, it is normally for
the employer to show that it was for a legitimate reason (see Fair
dismissal). Having
established the reason for dismissal, the tribunal must then in most
cases decide whether in the circumstances the employer acted
reasonably in treating that reason as a sufficient one for
dismissal. The circumstances taken into account include the size and
administrative resources of the undertaking; but these
considerations do not apply if the tribunal finds that the dismissal
was on one of the grounds classed as automatically unfair, because
it was for one of the following reasons:
- pregnancy or
any reason connected with maternity;
- taking, or
seeking to take, parental leave, paternity leave (birth and
adoption), adoption leave or time off for dependants;
- failure to
return from maternity or adoption leave because the employer did
not give or gave inadequate notice of when the leave period
should end;
-
matters
connected to/making a request under the flexible working
provisions of the
Employment Rights Act 1996 as amended by the
Employment Act 2002;
- taking
certain specified types of health and safety action;
- refusing or
proposing to refuse to do shop or betting work on a Sunday;
- grounds
related to rights under the Working Time Regulations 1998;
- performing or
proposing to perform any duties relevant to an employee's role as
an employee occupational pension scheme trustee or as a director
of a trustee company;
- grounds
related to acting as a representative for consultation about
redundancy or business transfer, or as a candidate to be a
representative of this kind, or taking part in the election of
such a representative;
- making a
protected disclosure within the meaning of the Public Interest
Disclosure Act 1998;
- asserting a
statutory employment right;
- grounds
related to the national minimum wage;
- qualifying
for working tax credit or seeking to enforce a right to it (or because the employer
was prosecuted or fined as a result of such action);
- trade union
membership or activities, or non-membership of a trade
union;
- taking
lawfully organised official industrial action lasting eight weeks
or less (or more than eight weeks, in certain
circumstances);
- 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,
proposing to take or failing to take certain actions in connection
with these regulations;
- grounds
related to trade union recognition procedures;
- exercising or
seeking to exercise the right to be accompanied at a disciplinary
or grievance hearing, or to accompany a fellow worker;
- grounds
related to the Part-time Workers (Prevention of Less Favourable
Treatment) Regulations 2000;
- grounds
related to the Fixed-term Employees (Prevention of Less Favourable
Treatment) Regulations 2002;
- a failure
to follow the statutory dismissal procedure;
- grounds
related to the European Public Limited-Liability Company
Regulations 2004;
- from 6
April 2005, grounds related 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);
- from 6
April 2005, grounds related to jury service.
If the
employment tribunal finds the dismissal was unfair, it will order
one of three possible remedies: reinstatement, re-engagement or
compensation. Orders for reinstatement or re-engagement normally
include an award of compensation for the loss of
earnings.
Further details
of the law on unfair dismissal and the remedies available, including
how awards are calculated, can be found in the documents Unfairly
dismissed?
(PL712) and Fair and
unfair dismissal (PL714).
Fair
dismissal
Dismissal is
normally fair only if the employer can show that it is for one of
the following reasons:
- a reason
related to the employee's conduct;
- a reason
related to the employee's capability or qualifications for the
job;
- because the
employee was redundant;
- because a
statutory duty or restriction prohibited the employment being
continued;
- some other
substantial reason of a kind which justifies the dismissal.
Where the
employer shows that the reason was one of these, the tribunal has to
consider whether the employer acted reasonably in the circumstances
by treating this reason as sufficient to dismiss the employee. Among
the circumstances it takes into account are the size and
administrative resources of the employer's undertaking.
It will also
take account of whether the employer followed appropriate
disciplinary procedures. From 1 October 2004, when statutory
dismissal and disciplinary procedures come into force1,
where those procedures apply and are not treated as having been
complied with, a dismissal will be unfair if an employee is
dismissed without the procedure having been followed.
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.
Dismissal on the
grounds of redundancy is unfair if the employee is
selected for redundancy (when others in similar circumstances are
not selected) for any of the reasons listed in the Unfair
dismissal section as
'automatically' unfair (except dismissals in connection with the
right to be accompanied). It may also be unfair for some other
reason, such as the employer failing to give adequate warning of the
redundancy, or to consider the employee for alternative
employment.
____________________________________________________
1) The statutory procedures will apply when an
employer first contemplates dismissal or disciplinary action on or
after 1 October 2004, but not when a procedure of the employer's own
has been started before that date.
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