Unfair Dismissal

Qualifying period: normally 52 weeks continuous employment unless the main reason for the dismissal is an Union related reason, assertion of a statutory right, health and safety related, due to pregnancy, child birth or maternity and parental leave, working time, national minimum wage, whistle blowing and various other reasons. If an employee is protected from unfair dismissal then the unfair dismissal must be for a fair reason. Some reasons are automatically unfair e.g. whistle blowing.

There must also be a fair procedure which must be used before making a decision to dismiss.

Unfair dismissal is a statutory right giving employees with one year’s service the right to complain to a Tribunal that they have not been treated fairly or reasonably by their employer.
Some unfair dismissal cases are rather simple as the grounds are inherently unfair. However, proving the grounds in these types of unfair dismissal cases is not. Employer will be liable if the employee can prove that the dismissal was based on any of the following reasons:

• Membership (or non membership) of a trade union or for trade union activities
• Something to do with health and safety
• Bringing proceedings against the employer for breaking certain statutory employment rights
• Unlawful discrimination on grounds of race, sex, disability, religion or belief, sexual orientation or age
• Pregnancy or any other reason connected with the pregnancy
• When the employee’s work is transferred to another employer, under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE)
• Refusing to forego a right under the Working Time Regulations
• Seeking to enforce rights under the National Minimum Wage Act
• Making a protected disclosure under the whistle blowing legislation
• Trying to obtain (or prevent) recognition of an independent trade union
• Seeking to exercise the right to be accompanied at a grievance or disciplinary hearing
• Taking part in lawful industrial action
• In connection with the employee’s rights with regard to parental, paternity or adoption leave, time off for looking after dependants, maternity leave or the right to ask to work flexibly
• Taking action in connection with part-time workers’ or fixed term workers’ rights
• Refusal by a shop worker to work on Sunday
• Connected with an employee’s function as a pension fund trustee
• In breach of the Information and Consultation Regulations 2004
• In connection with retirement when the employer has not informed the employee of their right to request to continue working; or while the “duty to consider” procedure is ongoing

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