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DISMISSAL - FAIR AND UNFAIR : A GUIDE FOR EMPLOYERS
PL714 (REV 11)
Dismissal
relating to activities as an occupational pension scheme trustee
A dismissal
will be held to be unfair if the main reason for it is that an
employee who is a trustee of a relevant occupational pension scheme
has performed, or has proposed to perform, any functions as such
a trustee. There is no qualifying period of service or age limit
for employees who wish to complain that they have been dismissed
for these reasons. It is also unlawful for an employer to subject
an employee to any other detrimental treatment for these reasons.
A "relevant
occupational pension scheme" means an occupational pension
scheme (as defined in section 1 of the Pension Schemes Act 1993)
established under a trust
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 to their participation in the election of such
a representative. Further details can be found in the documents Redundancy
consultation and notification (PL833) and Employment
rights on the transfer of an undertaking (PL699).There is
no qualifying period of service or age limit 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.
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 (or selected for redundancy)
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 or age limit 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.
Dismissal
on the grounds of trade union recognition
On 6 June
2000, a statutory procedure came into force concerning the recognition
and derecognition of trade unions for collective bargaining purposes.
For dismissals taking place on or after that date, 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 or upper age limit 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 (or selected for redundancy), regardless
of age or 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 (reproduced
as Appendix
2 of this document).
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 or age limit 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 (PL501) which
is obtainable by calling 0845 8450 360.
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.
Workers
who are 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 or age limit 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 the document Your
guide to working time regulations .
Dismissal
for making a public interest disclosure
The Public
Interest Disclosure Act 1998, which came into force on 2 July
1999, 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 or age limit 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' (PL502).
Dismissal
relating to the Tax Credits Act 2002
From April
2003, the Tax Credits
Act 2002 introduces working tax credit. 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
- from the
same date, that their employer was prosecuted or fined as a
result of such action.
There is no
qualifying period of service or upper age limit 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).
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;
- declined
to sign a workforce agreement for the purposes of the Maternity
and Parental Leave Regulations 1999;
- performed
(or proposed to perform) any functions or activities as a workforce
representative or candidate for the purposes of the Regulations.
There is no
qualifying period of service or upper age limit 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 for employers and employees (PL510) and Parental
leave: a guide for employers and employees (PL509).
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 time off to deal with certain
circumstances involving a dependant.
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.
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.
Dismissal
relating to the Part-time Workers (Prevention of Less Favourable
Treatment) Regulations 2000
Broadly, the
aim of the Regulations, which came into force on 1 July 2000,
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 age or 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.
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Dismissal
relating to the Fixed-term Employees (Prevention of Less
Favourable Treatment) Regulations 2002
The
aim of the Regulations, which came into force on 1 October 2002,
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 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 age or 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.
Employees 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 (PL 512).
Dismissal without following statutory dismissal and
disciplinary procedures
From 1 October 2004, statutory dismissal and disciplinary
procedures come into force. Once they are in force, where they
apply and are not treated as having been complied with, it will be
unfair to dismiss an employee without their having been followed,
if failure to follow them is wholly or mainly the fault of the
employer. Employees who wish to complain that they have been
unfairly dismissed for this reason must have completed one year's
continuous employment at their effective date of termination and
must not have reached the normal retiring age for their
employment, or, if there is no normal retiring age, the age of 65
(see also Effective date of
termination).
The statutory procedures do not have to
be followed in certain circumstances, for instance in some
collective redundancies, in industrial action dismissals and in
constructive dismissals. There are also circumstances in which the
procedures are treated as having been followed even though they have
not been. For further information see the
Dispute resolution
web page.
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