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DISMISSAL - FAIR AND UNFAIR : A GUIDE FOR EMPLOYERS
PL714 (REV 12)
Appendix
Further information
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:
- Dismissal
relating to the national minimum wage,
- Dismissal
relating to the Working Time Regulations 1998, and
- 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
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, (PL705));
- employees
who, before their effective date of termination (see Effective
date of termination), had reached the normal retiring age
for their employment or, if there is no normal retiring age,
had reached age 65;
- certain
employees with fixed term contracts for one year or more where
the dismissal consists only of the expiry of the contract without
renewal and the employee has previously agreed in writing to
forgo his or her right of complaint in such circumstances. Any
such agreements must have been made before 25 October 1999
and are valid only for the term of the contract to which they
originally related, or any extension of the term agreed before
25 October 1999. Since that date, employees working under fixed
term contracts cannot agree to waive their right to complain
of unfair dismissal;
-
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 may
make a complaint of unfair dismissal?), an employee may complain
to an employment tribunal regardless of length of service or age.
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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