Unfair Dismissal Scope
Overview
It is usually possible for an employer to terminate an employment contract at common law by simply giving the appropriate period of notice to terminate. There does not have to be a good reason or any reason at all.
Because of the potential unfairness of this position, legislation was introduced to allow most employees to apply to an Industrial Tribunal on the basis that the dismissal is unfair. If an “unfair dismissal” is found to have occurred, the employee has certain rights of compensation or reinstatement.
In order to claim unfair dismissal, the employer must have terminated the contract of employment either orally, in writing or by conduct. If the employer has acted so unreasonably as to force the employee to resign, the employee can be deemed to be “constructively” dismissed.
The employer would have to be shown to be in very serious breach of contract for this to be accepted. Examples may (but everything depends on the particular circumstances) include the unilateral imposition of substantial revisions of pay, working hours and relocation. Even in these types of situation, the employee would be expected to have exhausted internal avenues of grievance and not have resigned as a first option.
Qualification Period
The right to claim unfair dismissal does not apply to certain categories of employee. This includes employees who have been in continuous employment for less than one year year.
The requirement for a year’s service does not apply to a dismissal based on discrimination. The employee cannot claim unfair dismissal but may have a claim for compensation for unlawful discrimination.
An employee who is dismissed for making a protected disclosure (whistle blowing) may claim unfair dismissal irrespective of the length of service.
Certain of the automatically unfair grounds apply regardless of the length of service.
There may be breach of contract by the employer for failing to follow contractual disciplinary redundancy policy, irrespective of the length of service
Date of Termination
The effective date of termination is decided as follows: provided the employee or employer gives notice, and the employee works through it, then the date is the date upon which the notice expires, subject to exceptions below. If the contract is terminated without notice (except that the employer should have given notice), the effective date is the date of dismissal. Where the employer should have given notice, the effective date is the date the notice would have expired.
If the employee receives a payment in lieu instead of working out notice, the effective date is the last day on which the employee worked for the employer. If the contract terminated with or without notice by the employee, the effective date is the last date when the employee worked for the employer.
In the case of expiry without renewal of a fixed-term, limited-term contract, the effective date is the date of expiry. A limited-term contract is a contract for a fixed term or the performance of a specific task, one that ends when a specified event does or does not occur.
In determining whether the employee has worked for a sufficient period of continuous employment to qualify for unfair dismissal, the proper period of notice, if not given, is deemed to be given, and the employment terminates accordingly. Where the employee has terminated the contract of employment and where the employer has not already given notice, the effective date is the date of expiry of statutory minimum notice which the employer would have had to give had he dismissed the employee on the same day as the employee resigned.
Employees Covered
Most employees are entitled to rights against unfair dismissal. An employer must generally have completed one continuous year as an employee. This period is reduced to four weeks on dismissal on medical grounds in consequence of health and safety requirements or recommendations.
The following are excluded from the Act but may enjoy other protection.
- Members of the Police,
- Armed Forces members,
- masters, and crews engaged in share fishing,
- and other employees extended by Order made by the Department.
Regardless of Length
The following bases of dismissal apply irrespective of the length of employment:
- dismissal for trade union activities;
- dismissal for failure to accept an unlawful inducement to relinquish trade union rights;
- dismissal for failure to accept an offer by an employer to induce the employee to be a trade union member;
- dismissal for refusing to make payment in lieu of union membership or objecting to discussion;
- dismissal for having sought in good faith to exercise statutory employment protection;
- dismissal for proposing to take certain action on health and safety grounds;
- dismissal on maternity, paternity, or adopted leave related grounds;
- dismissal of shop workers or betting workers for refusing or proposing to refuse to do the same or giving that notice;
- dismissal for qualifying for the national minimum wage or seeking to enforce the right;
- dismissal for performing or proposing to perform duties relating to the role as an employee occupational scheme trustee;
- dismissal for making a protective disclosure;
- dismissal for exercising rights under the working time regulations;
- dismissal for reasons related to tax credits, parental leave, time off for dependents;
- dismissal for taking a lawfully authorized official action lasting 12 weeks or less;
- dismissal on grounds relating to trade union recognition procedures;
- dismissal in connection with disciplinary and grievance procedures;
- dismissal for performing or proposing to perform duties in relation to an employee’s role as a workforce representative or candidate for the same;
- dismissal on grounds relating to part-time worker’s legislation or fixed-term worker’s legislation;
- dismissal on grounds relating to information and consultation of employees, in the case of undertakings with more than 50 employees; dismissal relating to jury service;
- dismissal relating to occupational pension schemes, consultation of undertakings with more than 50 employees.