Presumed Unfair
Automatic Unfair Grounds
There are certain circumstances where the grounds for dismissal are deemed automatically unfair. They include the following:-
trade union membership;
trade union activities;
closed shop dismissal i.e. dismissal for refusing to become a member of an independent trade union;
the assertion of a statutory right;
pregnancy;
refusing to work because of well-grounded health and safety reasons
victimisation
health and safety representative activity
whistleblowing
raising health and safety concerns
It is automatically unfair to dismiss certain shop workers who refuse to work on Sunday where they are either a “protected” or an “opt out” worker. A protected shop worker is one who before August 1994 was not employed to work on Sundays. Where an employee opts out in writing, he is no longer a protected shop worker. An opted out worker is one who is not protected but gives notice to an employer of his objection to working Sunday work.
Three month’s notice is required to opt out. Every new employee has the right to receive an explanatory statement in relation to the opt-in and opt-out provisions. An employee who is asked to work Sundays and has no objection may by written notice opt-in and is no longer protected. An opted out worker is one who is not protected but has given notice of objection.
A dismissal for taking part in an industrial action will be automatically unfair if it takes place in the first 8 weeks of participation. It would also be unfair after that period if the employer fails to take part in reasonable procedures to resolve the dispute. Unfairly dismissed strikers will be entitled to reinstatement after the strike is over.
In the case of unofficial disputes, the employer is given wider latitude and is allowed to select employees to dismiss and re-engage without penalties. Industrial action will not be considered unofficial where it is authorised or endorsed by a trade union.
It is automatically unfair to dismiss on the basis of not wishing to pay the National Minimum Wage. There is special legislation in the UK protecting employees who “blow the whistle” about wrongdoing. In these circumstances, employees are protected from unfair dismissal and detriment. The kind of disclosure which qualify for protection will include where the employee reasonably believes one or more of the following is happening or took place or is likely to take place:-
criminal offence;
breach of legal obligation;
miscarriage of justice;
a danger to the health and safety of an individual;
damage to the environment;
covering up of information about the above.
It may subsequently be discovered that the employee was wrong in his reasonable belief. The employee would still be protected as long as he had a reasonable belief.
Where an undertaking is transferred from one employer to another, and an employee is dismissed by either the new business or old business for a reason that is not connected with the economic, technical, or organizational reasons entailing changes in the workforce, it is presumptively unfair.
Dismissal on the grounds of unfair selection for redundancy is automatically unfair if the reason is related to any of the above grounds (which are mentioned in the context of entitlement to redundancy arising within a year); then it is automatically unfair.
It may also be deemed unjust where the employee is selected for redundancy when others in similar circumstances were not selected and one of the above reasons applied.
Dismissal on the ground of redundancy may also be unfair when it is unreasonable in the circumstances, either procedurally or substantively.
The above trade union-related grounds are presumed automatically unfair, including that the employee was or proposed to become a member of an independent trade union, took part in its activities provided the activities are outside working hours or in accordance with arrangements between the employer, with the employer permitting the same; that the employee has failed to accept an unlawful inducement by the employer to relinquish their trade union rights or disapply collective agreements or failed to accept an offer made by the employer to induce them to be a trade union member or the employee refuses to make a payment to a union or objects to a deduction.
The employee is to be held unlawfully dismissed if the reason or the main reason was acting with a view to obtaining recognition of a trade union, indicated that they supported or did not support recognition of a trade union under the procedure, acting with a view to preventing or securing the ending of bargaining arrangements influenced, the voting procedure under the recognition application voted in such a ballot. Influenced or sought to influence other employees to vote or abstain from voting, proposed to do or fails to do or proposed to decline any of the things above. The above is the case unless the act or omission of the employee was unreasonable.
Employees may make an interim application to any Industrial Tribunal if they are of the view that dismissal was based on one of the above.
Employees are unlawfully, unfairly dismissed if they are dismissed for the exercise of the right to be accompanied or accompanying or seeking to accompany another employee to a disciplinary or grievance Tribunal.
Employees have the right to perform functions as occupational scheme trustees. A dismissal is unfair if the main reason was that the employee performed or proposed to perform duties in connection with the scheme.
An employee is presumed unfairly dismissed if they are dismissed because they carried out activities designated to carry out for preventing health and safety risk at work, conforming or proposing to perform functions as health and safety representatives or committee members; bringing to their employer’s attention by reasonable means and in the absence of a representative or committee with whom it would have been reasonably practicable to remain the matter or concern about health and safety issues.
In the event of danger, which is reasonably believed to be serious and imminent and which they cannot reasonably be expected to avert, they leave the workplace or a dangerous part of it or refuse to return; in circumstances of danger, which they reasonably believe to be serious and imminent, take or propose to take appropriate steps to protect themselves.
It is unlawful for an employer to discriminate to the detriment of an employee who takes any of the above courses.
It is an automatically unfair ground if a person is dismissed by reason of assertion of statutory rights. Provided they act in good faith, employees are protected regardless of whether they enjoy the right they sought to assert. They need not specify the right as long as it is reasonably clear to the employer what the right was. The legislation covers the principal statutory right.
The Shops (NI) Order 1997 gives persons a right to opt out of Sunday working. Persons later employed may also opt out subject to certain waiting periods. The rights do not apply to those employed to work only on Sundays.
A dismissal based on refusal to do betting work on a Sunday is deemed unfair. As in other places, the person has a right not to be dismissed, not to be selected for redundancy accordingly, notice of any detriment for refusing to work on a Sunday.
Based on the above grounds and expand them with the above items. Further expansion, dismissal relating to activities by an employee representative in the context of business transfers, redundancies under transnational information and consultation legislation for larger employees (in the latter case only) is not on those grounds.
Employees are deemed unfairly dismissed if they are dismissed for the main reason that they took part in action to enforce the national minimum wage or enforce legislation on working time legislation. In particular, if they refuse to comply with a requirement which an employer imposes or proposes to impose in contravention of the working time regulations, refuse to forego rights conferred by the regulations, fail to sign a workforce agreement, to make, vary or continue any other agreement under the regulations or perform or propose to perform functions or activities as a workforce representative.
In the above cases, in respect of the national minimum wage and working hours, the rights are available for certain non-employees who suffer detriment if their contracts are terminated for such reasons.
There are equivalent provisions in respect of dismissal.
Dismissals based on taking or seeking to take parental leave; declining to sign a workforce agreement for the purpose of the regulations, forming activities as a representative under the legislation, exercising times for reasonable law time-off, taking are seeking to take paternity leave, seeking or seeking to take adoptive leave are deemed unfair grounds.
A dismissal which reason as an application to work flexibly under legislation or is so applying or making a complaint to an Industrial Tribunal in respect of the same is deemed automatically unfair.
It is unfair to dismiss an employee when failure to apply statutory disciplinary dismissal and grievance procedures is through wholly or mainly to the employer’s fault.
Dismissals, where the reason or main reason is the exercise of rights under the part-time worker’s regulations, fixed-term employee contracts legislation are deemed automatically unfair.
Retirement is a potentially fair reason for dismissal. Intended retirement must take place after the age of 65 or after the employer’s normal retirement age, if lower and objectively justified. The employer must notify the employee of the date on which they intend to retire him and of their right to request not to be retired on that date. The employer must have considered the request, if made, including meeting with the employee to discuss the request in accordance with a specified procedure. The retirement must then take place on the intended date of retirement in order to be deemed fair.
It is automatically unfair to dismiss employees for taking part in an official industry action lasting 12 weeks or less. It is unfair to dismiss them for taking part in industrial action lasting more than 12 weeks, if the employer has not first taken such procedures or steps as are reasonable to resolve the dispute. The matter may be determined by the Industrial Tribunal.
The Industrial Tribunal has no jurisdiction to determine unfair dismissal when the employee is dismissed while participating in the official action, provided that the employer has dismissed all of those who are taking part in the action in the same establishment as the complainant at the date of dismissal and has not offered reengagement to any of them within three months of dismissal without making a similar offer. An Industrial Tribunal has no jurisdiction to determine a complaint of unfair dismissal from an employee dismissed while participating in unofficial industrial action. However, the Industrial Tribunal does have jurisdiction to hear a complaint of unfair dismissal where the main reason for the dismissal was the taking of specified types of action on health and safety grounds, maternity-related grounds, working time regulation ground, action as an employee representative, under various legislation, exercising maternity and parental leave]; reasons related to paternity and adoptive leave; time off for dependents, request for flexible working.
Where an employee has been dismissed, having made a complaint on equality legislation and is also eligible to make a complaint under unfair dismissal legislation, they may do so even if the claim asserts that the reason for dismissal was an unlawful act of discrimination.