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Dismissal relating to Trade Union membership or activities or non-membership
of a Union
A dismissal will be held to be unfair if the main reason for it was either:
- that the employee was, or proposed to become, a member of an independent
trade union; or
- had taken part, or proposed to take part, in the activities
of an independent trade union, if the activities were outside working hours
or in accordance
with an arrangement with the employer permitting the employee to take part
in such
activities during working hours; or
- that the employee was not a member of
a trade union, or had refused or proposed to refuse to become or remain a
member.
There is no qualifying period of service, or upper age limit for
employees who wish to complain that they have been dismissed for either of
these reasons.
Dismissal on the grounds of Trade Union Recognition
On 6 June 2000, a statutory
procedure came into force concerning the recognition and derecognition of trade
unions for collective bargaining purposes. For
dismissals taking place on or after that date, employees will be held to
be unfairly dismissed
(or selected for redundancy) if the reason, or the main reason, for the
dismissal is that they:
- acted with a view to obtaining or preventing recognition
of a union (or unions) by the employer under Schedule A1 of the Trade Union
and Labour Relations
(Consolidation)
Act 1992 (as inserted by Schedule 1 of the Employment RelationsAct 1999);
- indicated that they supported or did not support recognition of a union
(or unions) under that Schedule;
- acted with a view to securing or preventing
the ending under that Schedule of bargaining arrangements;
- indicated that
they supported or did not support the ending under that Schedule of bargaining
arrangements;
- influenced or sought to influence the way in which votes were
to be cast by other workers in a ballot arranged under that Schedule;
- influenced
or sought to influence other workers to vote or to abstain from voting in
such a ballot;
- voted in such a ballot; or
- proposed to do, failed to do, or proposed
to decline to do, any of the things referred to above;
unless the relevant
act or omission of the employee was unreasonable.
Employees can make an application for interim relief to an employment
tribunal if they consider that the reason or principal reason for their
dismissal
was one of the above. There is no qualifying period of service or upper
age limit
for employees who wish to complain that they have been dismissed for
these reasons. It is also unlawful for an employer to subject workers
to a detriment
for these
reasons by any act or by any deliberate failure to act.
Dismissal during
an Industrial Dispute
It is automatically unfair to dismiss workers for taking
organised official industrial action lasting eight weeks or less. It is also
unfair to dismiss
them where they
have taken action for more than eight weeks if the employer has not
first taken such procedural steps as are reasonable to resolve the
dispute.
It will be for
the employment tribunals to determine whether an employer has taken
all reasonable steps, and in doing so, they will have regard to the
behaviour
of both the
employer and the union.
Otherwise, subject to the exceptions listed below, an employment tribunal
has no jurisdiction to determine a complaint of unfair dismissal from
an employee
dismissed while participating in official industrial action provided
his or her employer:
- has dismissed all who were taking part in the action at the same establishment
as the complainant at the date of his or her dismissal; and
- has not
offered re-engagement to any of them within three months of their date of
dismissal without making him or her a similar offer.
Likewise (again, subject
to the exceptions listed below), an employment tribunal has no jurisdiction
to determine a complaint of unfair dismissal
from an
employee dismissed while participating in unofficial industrial action.
The exceptions are that an employment tribunal can determine a complaint
of unfair dismissal from an employee dismissed while participating
in official or unofficial
industrial action if the reason or main reason for the dismissal
was:
- the taking by the employee of certain specified types of action
on health and safety grounds;
- on maternity related grounds;
- in respect of the taking by the employee
of certain specified types of action as an employee representative or as
a candidate to become
an employee representative,
or of the participation of the employee in the election of such
a representative; or
- that the employee exercised rights under the Working Time
Regulations 1998; or
- that the employee exercised rights prescribed in the
Maternity and Parental Leave etc Regulations 1999; or
- for reasons related
to paternity or adoption leave; or
- that the employee asserted the right
to time off for dependants; or
- for reasons related to the right to request
flexible working arrangements; or
- that the employee had been summoned for
jury service or had been absent from work on jury service.
An employment
tribunal can also determine a complaint of unfair dismissal from an employee
dismissed while participating in unofficial
industrial
action if the reason or main reason for the dismissal was that
the employee made
a
protected
disclosure within the meaning of the Public Interest Disclosure
Act 1998.
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