| |
DISMISSAL - FAIR AND UNFAIR : A GUIDE FOR EMPLOYERS
PL714 (REV 11)
Who may make
a complaint of unfair dismissal?
In general
any employee below retiring age 4 has the right to make a complaint
of unfair dismissal to an employment tribunal provided that he
or she has worked for that employer for at least one year, including
any statutory period of notice (see Effective
date of termination).
In the following
types of case, however, employees may make a complaint regardless
of their length of service or age:
- dismissal
for trade union membership or activities or for non-membership
of a trade union;
- dismissal
on maternity related grounds (see Dismissal
on the grounds of pregnancy or maternity);
- dismissal
related to paternity leave (see Dismissal related to paternity
leave);
- dismissal
related to adoption leave (see Dismissal related to adoption
leave);
- dismissal
for having sought, in good faith, to exercise a statutory employment
protection right (see Dismissal
for asserting a statutory employment right);
- dismissal
for taking, or proposing to take certain specified types of
action on health and safety grounds (see Dismissal
for taking action on health and safety grounds);
- dismissal
of a shop worker or betting worker, subject to certain conditions,
for refusing, or proposing to refuse to work on Sundays; or
for giving, or proposing to give, an "opting-out"
notice to his or her employer (see Sunday
shop and betting work: employees rights (PL960));
- dismissal
for performing, or proposing to perform, any duties relevant
to an employee's role as an employee occupational pension scheme
trustee (see Dismissal relating
to activities as an 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) (see Dismissal
relating to the national minimum wage);
- dismissal
for exercising rights under the Working Time Regulations 1998
(see Dismissal relating to the
working time regulations);
- dismissal
for making a protected disclosure within the meaning of the
Public Interest Disclosure Act 1998 (see Dismissal
for making a public interest disclosure);
- 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 (see Dismissal
relating to activities as an employee representative);
- dismissal
for taking or seeking to take parental leave (see Dismissal
relating to parental leave);
- dismissal
for taking or seeking to take time off for dependants (see Dismissal
relating to time off for dependants);
- dismissal
for reasons relating to the Tax Credits Act 2002 (see Dismissal
relating to the Tax Credits Act 2002);
- dismissal
on grounds related to trade union recognition procedures (see
Dismissal on the grounds of trade
union recognition);
- dismissal
for exercising or seeking to exercise the right to be accompanied
at a disciplinary or grievance hearing, or to accompany a fellow
worker (see Dismissal in connection
with disciplinary and grievance hearings);
- dismissal
for reasons relating to the Transnational Information and Consultation
of Employees Regulations 1999 (see Dismissal
relating to the Transnational Information and Consultation of
Employees Regulations 1999);
- dismissal
on grounds related to the Part-time Workers (Prevention of Less
Favourable Treatment) Regulations 2000 (see Dismissal
relating to the Part-time Workers (Prevention of Less Favourable
Treatment) Regulations 2000);
- dismissal
for taking lawfully organised official industrial action lasting
eight weeks or less (or more than eight weeks, in certain circumstances),
where the action started on or after 24 April 2000;
- dismissal
on grounds related to the Fixed-term Employees (Prevention of
Less Favourable Treatment) Regulations 2002 (see Dismissal
relating to the Fixed-term Employees (Prevention of Less
Favourable Treatment) Regulations 2002.
In the case
of dismissal on certain medical grounds there is a qualifying
period of one month's continuous employment before a complaint
can be made.
(For further
details of these categories and details about those who may not
claim unfair dismissal see Those
who may not complain of unfair dismissal).
If there is
any doubt or disagreement about whether an employee is covered
by the legislation the tribunal will decide.
What
happens when an employee makes a complaint of unfair dismissal?
Many disputes
about the fairness or unfairness of dismissals are settled through
agreed voluntary procedures without the employee making a complaint
to an employment tribunal. The following section deals with what
happens when an employee makes a complaint to an employment tribunal.
What
is the procedure for making a complaint?
The employee
(called the applicant) can make an application to an employment
tribunal (on the form IT 1 or IT 1 (Scot)
in Scotland) as soon as the employer (called the respondent) has
given the notice of dismissal. This application should give particulars
of the grounds of the complaint and must normally be received
within three months of the employee's effective date of
termination (see Effective date of
termination and Interim relief
. If the application is late, the tribunal will consider the complaint
only if there are circumstances making it not reasonably practicable
for the employee to have made the application in time. The fact
that an employee is pursuing an internal appeals procedure is
not normally considered sufficient grounds for a late application.
The office of the employment tribunals dealing with the employee's
application form will send the employer a copy of the application
and a form called a Notice of appearance (IT 3).The employer
should fill in this form, stating whether or not he or she wishes
to contest the case, and if so, giving particulars of the grounds
for doing so. The employer and the employee may each request further
particulars of the other's case. It is in the interests of both
parties to fill in these forms as fully as possible so that the
tribunal does not have to come back to them for further details
and so that if the matter comes to a hearing both parties and
the tribunal know exactly what is at issue. With the Notice of
appearance the employer is also sent a copy of a booklet explaining
employment tribunal procedures .5
What
is conciliation?
Once a complaint
has been made to an employment tribunal, but before the hearing
takes place, there is an opportunity for the case to be settled
by conciliation. Copies of completed application forms and the
Notice of appearance by the employer are sent by the employment
tribunals to the Advisory, Conciliation
and Arbitration Service (Acas), an independent service, quite
separate from the employment tribunal. Conciliation is carried
out by an Acas conciliator, who has a duty in most cases to try
to assist, either at the request of the applicant and respondent,
or on his or her own initiative. The conciliator's job is to try
to help the respondent and applicant make a voluntary agreement
to settle the complaint without it having to go before an employment
tribunal.
The conciliator
usually begins by talking separately, and in confidence, to the
applicant and respondent, encouraging them both to use any agreed
voluntary appeals procedure where this has not already been done.
The conciliator will discuss the case itself, help them to understand
particular points in the law and qualifying conditions, and may
draw attention to particular features of the case, including decisions
taken in previous cases which may be similar. However, he or she
will not offer any opinion on the merits of either side's case
or 'take sides' in any way. Many dismissals are not clear-cut
issues and quite often, in discussion with the conciliator, matters
will be seen differently with the result that a voluntary solution
will be reached through conciliation, as an alternative to the
case going to the tribunal.
Where the
applicant and respondent are willing, the conciliator will explore
the possibility of the respondent's reinstatement of the applicant
in the same job, or re-engagement in some other job.
If an employee
unreasonably refuses an offer of reinstatement any eventual award
of compensation made by a tribunal can be reduced. However, most
conciliated settlements are those where the respondent pays the
applicant a mutually agreed sum of money in compensation.
The employment
tribunal hearing is quite separate from conciliation. If a date
for the hearing is arranged but a settlement seems likely the
parties can write to the tribunal and ask for a postponement.
The conciliator does not normally attend the tribunal hearings,
nor does he or she give the tribunal any report on the conciliation
action. Anything communicated to a conciliator is not admissible
in evidence before a tribunal except with the consent of the person
who communicated it.
4
But see note in
Appendix 1, Those who may not complain of unfair dismissal
5
Employers wishing to know more about tribunal procedures may obtain
a copy of the booklet What to do if taken to an employment
tribunal free of charge from the DTI Publications Orderline
on 0870 1502 500. 
|
