DAVID ROYDEN - EMPLOYMENT SOLICITOR
UK EMPLOYMENT LAW

David Royden is a Partner with Laytons Solicitors and Head of Employment Law, Manchester, UK

Laytons Solicitors is a national law practice specialising in all aspects of Company and Commercial Law

Laytons Solicitors, 22 St John Street, Manchester M3 4EB.
Tel: +44 (0) 161 834 2100
Fax: +44 (0) 161 834 6862

Offices at London, Manchester and Guildford, UK

 

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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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