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DISMISSAL - FAIR AND UNFAIR : A GUIDE FOR EMPLOYERS (PL714 Rev 13 - URN 05/1912)

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, because she is pregnant or has given birth to a child, or for a reason connected with her pregnancy or childbirth.

All employees whose expected week of childbirth was on or after 6 April 2003 are entitled to 26 weeks' maternity leave provided that they satisfy certain notification requirements. If such employees have completed 26 weeks continuous employment by the beginning of the 14th week before the expected week of childbirth they are entitled to an additional period of maternity leave. Additional maternity leave lasts for up to a further 26 weeks starting from the end of ordinary maternity leave.

A detailed description of the maternity provisions may be found in the document: Maternity rights: a guide for employers and employees (PL958) (610Kb).

A woman may make a complaint of automatic unfair dismissal, regardless of her length of service, 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 ordinary or additional maternity leave, and the employer has not first complied with the requirement to offer her any suitable alternative vacancy which is available.

In addition, from 6 April 2003, 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; or

  • it was not reasonably practicable for her to be taken back in her original job or to be offered a suitable alternative job and the employer (together with any associated employers) employed only five or fewer people (including the employee herself) at the point when her additional maternity leave period ended.

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.

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 (PL517).

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
  • the employee failed to return after a period of additional adoption leave and

          - 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.

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 the document Adoptive parents - rights to leave and pay when a child is placed for adoption in the UK: a guide for employers and employees (PL518) (1.6Mb).

Dismissal relating to the right to request flexible working arrangements

It is unlawful for an employer to dismiss an employee irrespective of their age or 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 the documents Flexible working: the right to request and the duty to consider: guidance for employers and employees (PL520) (1.5Mb) and Flexible working: the right to request: a basic summary (PL516).

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, or age limit, for employees who wish to complain that they have been dismissed for one of the reasons described in this section.

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

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

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.

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 (www.drc-gb.org; 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).

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:

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 payments (PL808) and the Acas booklet Redundancy handling.

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 the document Employment rights on the transfer of an undertaking (PL699).

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 or upper age limit 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. It applies in Scotland, both for shop and for betting workers, from 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 (PL960).


 

 

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Last updated 19 December 2005