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UNFAIR DISMISSAL - ELIGIBILITY
Who may make a Complaint of Unfair Dismissal?
In general any employee below retiring age has the right to make a complaint
of unfair dismissal to an employment tribunal provided that he or she has worked
for that employer for at least one year, including any statutory period of
notice. Note that the correct date for establish eligibility in this respect
is the employee’s
Effective Date of Termination (see below).
However, in the following types of case employees may make a complaint regardless
of their length of service or age:
- dismissal for trade union membership or activities or for non-membership
of a trade union;
- dismissal on maternity related grounds;
- dismissal related to paternity
leave;
- dismissal related to adoption leave;
- dismissal related to the right to
request flexible working arrangements;
- dismissal for having sought, in good
faith, to exercise a statutory employment protection right;
- dismissal for
taking, or proposing to take certain specified types of action on health
and safety grounds;
- dismissal of a shop worker or betting worker, subject
to certain conditions, for refusing, or proposing to refuse to work on Sundays;
or for giving,
or proposing to give, an "opting-out" notice to his or her employer;
- dismissal for performing, or proposing to perform, any duties relevant
to an employee's role as an employee occupational pension scheme trustee;
- dismissal
for qualifying for the national minimum wage or seeking to enforce a right
to it (or because the employer was prosecuted as the
result of enforcement
action taken by the employee);
- dismissal for exercising rights under
the Working Time Regulations 1998;
- dismissal for making a protected disclosure
within the meaning of the Public Interest Disclosure Act 1998;
- dismissal
for performing, or proposing to perform, any duties relating to an employee's
role as an employee representative or as a candidate
to be a representative
of this kind or for participating in the election of such a representative;
- dismissal for taking or seeking to take parental leave;
- dismissal for
taking or seeking to take time off for dependants;
- dismissal for reasons
relating to the Tax Credits Act 2002;
- dismissal on grounds related to trade
union recognition procedures;
- dismissal for exercising or seeking to exercise
the right to be accompanied at a disciplinary or grievance hearing, or to
accompany a fellow worker;
- dismissal for reasons relating to the Transnational
Information and Consultation of Employees Regulations 1999;
- dismissal on
grounds related to the Part-time Workers (Prevention of Less Favourable Treatment)
Regulations 2000;
- dismissal for taking lawfully organised official industrial
action lasting eight weeks or less (or more than eight weeks, in certain
circumstances),
where the
action started on or after 24 April 2000;
- dismissal on grounds related
to the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations
2002;
- dismissal for reasons relating to the European Public Limited-Liability
Company Regulations 2004;
- dismissal for reasons relating to the Information
and Consultation of Employees Regulations 2004 for undertakings with 150
employees (from
6 April 2007 for undertakings
with 100 employees and from 6 April 2008 for undertakings with 50
employees);
- dismissal on grounds relating to jury service.
In the case of dismissal
on certain medical grounds there is a qualifying period of one month's continuous
employment before a complaint can be made.
Continuous Employment
An employee's period of employment
is presumed to have been continuous unless there is evidence to the contrary.
In most cases there will
be no doubt as
to whether or not an employee has worked for long enough to gain
the right to complain
of unfair dismissal. If an employee is doubtful that his or her employment
has been continuous, and further information is needed on what is
and what is not
continuous employment he or she should seek legal advice.
The period
spent by trainees on certain (but not all) Government training schemes does
not count towards a period of continuous employment
because
the trainees
are not employees (that is, they are not working under a contract
of employment).
Effective Date of Termination
The effective date of termination will be established in
the following manner:
- if either the employer or the employee gave notice and
the employee worked through the notice period, then the effective date is
the date on which
that notice expires
(but see the exceptions below);
- if the contract was terminated
without notice by the employer (except in cases where the employer should
have given notice as required
by law, when, for certain
purposes, the effective date is the date that notice would have
expired) the effective date is the day on which the employee was dismissed;
- if
the employee has received a payment in lieu instead of working part or all
of the notice period, then the effective date is generally
the last day on which
the employee worked for the employer;
- if the contract was terminated
with or without notice by the employee then the effective date is the last
day on which the employee worked
for the employer
(but see the exception below);
- in the case of the expiry without
renewal of a 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, or one which ends when
a specified event does or does not occur.
However, for the purpose of determining
whether an employee has worked a sufficient qualifying period of continuous
employment to make
a complaint of unfair dismissal,
and for certain other purposes (but not for the purpose of the
time-limit within which a complaint must be made), there are two exceptions:
- in cases where the employer has given shorter notice than that required
by law, the effective date is the date the longer required notice
would have expired
if it had been given;
- in cases where the employee terminated
the contract of employment and where the employer had not already given
notice the effective
date will normally be the
date of expiry of the statutory minimum notice period, which
the employer would have had to give if he or she had dismissed the employee
on the same day
as
the employee resigned.
Notice Period
The required statutory notice is one week if the employee has
been employed for one month but less than two years, two
weeks for two
years, three
weeks for
three years and so on up to 12 years. After 12 years' service
the period of notice required is 12 weeks. The employee
may be entitled
to longer
notice
under the
contract of employment. If a business is transferred
from one person to another, the period of employment of an employee
in the
business
at the time of the
transfer
counts as a period of employment with the transferee
and does not break the continuity of the period of employment.
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