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Thursday, 6 January 2011

Unfair dismissal

If you feel your employer ended your employment unfairly, either because of the reason why you were dismissed, or the process they used, then you may have been unfairly dismissed and might be able to complain to an Employment Tribunal (or Industrial Tribunal in Northern Ireland).

What is unfair dismissal

There are several ways your dismissal could be unfair:

  • your employer does not have a fair reason for dismissing you (eg if there was nothing wrong with your job performance)
  • your employer did not follow the correct process when dismissing you (eg if the have not followed their company dismissal processes)
  • you were dismissed for an automatically unfair reason (eg because you wanted to take maternity leave)

Automatic unfair dismissal

There are some reasons for dismissal that are automatically unfair, eg because of your gender or age. If you are dismissed for any of these reasons then you should be able to make a claim to and Employment Tribunal for unfair dismissal.

Dismissal for exercising your statutory employment rights

If your employer dismisses you for exercising or trying to exercise one of your statutory (legal) employment rights you will have been automatically unfairly dismissed.

An employees statutory employment rights include a right to:

  • a written statement of employment particulars
  • an itemised pay statement
  • a minimum notice period
  • maternity, paternity or adoption leave
  • time off for antenatal care
  • parental leave
  • time off for dependants
  • the right to request flexible working arrangements
  • not to be discriminated against because of your gender, race, disability, religion or belief, sexual orientation or age
  • guaranteed pay when work is not available for you
  • time off for public duties (eg jury service)
  • protection against unlawful deductions from wages
  • remuneration during suspension on medical grounds
  • refusing to do shop or betting work on a Sunday
  • making a public interest disclosure or ‘blowing the whistle’

Dismissal before, during or after business transfers

If the business you work for is being transferred to another company or taken over, you may be protected under the ‘Transfer of Undertakings’ (TUPE) protections.

If you are protected and you are dismissed by either your old or new employer because of the transfer, or a reason connected with it, the dismissal will be automatically unfair. The only exception to this is if your employer can show the dismissal was for an economic, technical or organisational reason.

Unfair selection for redundancy

Redundancy is a form of dismissal. If the reason you are selected for redundancy is unfair then you will have been unfairly dismissed.

Retirement

Retirement is a form of dismissal. If your employer cannot show that the reason for your retirement is fair, it could be an unfair dismissal. Your retirement must meet certain conditions to be fair:

  • your retirement date is on or after your 65th birthday if 65 or over is your employer’s normal retirement age (or on or after your employer’s normal retirement age if they have justified having a lower retirement age than 65)
  • your employer has given you proper notice of your retirement date
    if you are making a request to work longer than your retirement date your employer must have considered this
  • you retire on the intended date

Your employer cannot fairly dismiss you for asking to work past your employer’s normal retirement age.

Dismissal on the grounds of pregnancy or maternity rights

If you are pregnant, you cannot be fairly dismissed because:

  • of any reason connected with your pregnancy
  • you have given birth and you are dismissed during your ordinary or additional maternity leave
  • you have taken, or want to take, ordinary or additional maternity leave
  • of a health and safety issue that could mean you would be, or have been, suspended from work
  • of keeping in touch (or not keeping in touch) with your employer during your maternity leave

It would also be unfair dismissal if your employer dismisses you because you returned back to work late from maternity leave because your employer:

  • didn’t properly tell you when your leave ended
  • gave you less that 28 days’ notice of you maternity leave’s end date and it was not practical for you to return to work

Dismissal in connection with disciplinary or grievance hearings

You have the right to be accompanied by a trade union representative or colleague to a disciplinary or grievance meeting. You can also reasonably postpone the hearing if your companion cannot make it. If you are dismissed for trying to exercise these rights, or for accompanying a colleague, then it is automatically unfair.

This applies to both employees and to other workers (eg agency workers).

Dismissal relating to your working time

You normally have the right to paid leave, rest breaks, as well as limiting the average hours per week your employer can ask you to work. You cannot be fairly dismissed for refusing to:

  • break your working time rights – even if your employer  tells you to work
  • give up one of your working time rights
  • sign a workforce agreement that impacts your working time rights

Dismissal relating to part-time or fixed-term work

As a part-time or fixed-term worker you should not to be treated less favourably than a full-time or permanent employee (eg you should be offered the same or equivilent employment rights and benefits). You cannot be dismissed fairly because:

  • you are part time
  • you made a complaint about being treated less favourably than another employee
  • you gave evidence or were involved in a complaint raised by another employee
  • your employer believed you intended to do any of these things

Dismissal relating to trade union reasons

If you are dismissed for a reason around trade union membership, recognition or subscription funds it will be automatically unfair. This includes being dismissed for:

  • deciding to join, not to join or take part in the activities of a trade union or independent trade union, or for using its services
  • refusing to give up your rights under a collective agreement
  • objecting to or refusing to make a payment for union membership
  • showing your support or non-support of any aspect of trade union recognition in the workplace
  • asking your employer to stop paying a contribution of your trade union subscription into the trade union’s political fund
  • objecting to a deduction of unauthorised or excessive union subscriptions from your pay

Dismissal during an industrial dispute

It is automatically unfair for your employer to dismiss you for taking part in legal industrial action that lasts 12 weeks or less. If the industrial action lasts longer than 12 weeks because your employer has not taken reasonable steps to resolve the dispute then you are protected from unfair dismissal.

If you take part in unlawful industrial action then your employer could fairly dismiss you, so long as they treat you the same as the other employees who also took part in the unlawful industrial action. 

Dismissal relating to the National Minimum Wage (NMW)

You cannot be fairly dismissed for:

  • qualifying, or about to qualify, to be paid the NMW
  • insisting on your right to be paid at least the NMW
  • reporting your employer for not paying the NMW

Dismissal relating to activities as an occupational pension scheme trustee

If you are an employee occupational pension fund trustee you have the right to reasonable paid time off for your duties. You cannot be fairly dismissed for carrying out or trying to carry out your duties.

Dismissal for taking action on health and safety grounds

You will have been unfairly dismissed if you are dismissed for:

  • carrying out or trying to carry out any activities in your role as health and safety representative (rep) to reduce risks to health and safety
  • performing or trying to perform your duties an official or employer-acknowledged health and safety rep or committee member
  • bringing to your employer’s attention a concern about health or safety in the workplace
  • leaving, proposing to leave or refusing to return to the workplace (or any dangerous part of it) if there is a serious, imminent danger that you cannot prevent
  • taking or trying to take the appropriate steps to protect yourself or other people from a serious and imminent danger

Dismissal relating to activities as an employee representative

You cannot be fairly dismissed for being an employee representative (or thinking about becoming an employee representative) for consultations with your employer about:

  • redundancies
  • business transfers

You cannot be fairly dismissed for being or carrying out your duties as a:

  • European Works Council representative
  • member of a special negotiating body
  • information and consultation representative

Dismissal relating to tax credits

You will have been unfairly dismissed if you are dismissed because:

  • you are entitled, or will or may be entitled, to Working Tax Credits
  • you tried to enforce your right to receive Working Tax Credits
  • your employer was prosecuted or fined as a result of you trying to enforce your right

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