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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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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