Dismissal

It is automatically unfair for an employer to contemplate the dismissal of an employee without completing the relevant statutory procedures set out in the Employment Act 2002 and detailed in the Employment Act 2002 (Dispute Resolution) Regulations 2004, (1 October 2004).

Any employer, who is contemplating a dismissal on grounds of conduct or capability, including dismissal on grounds of redundancy and the expiry of fixed-term contracts, should ensure that a “fair” procedure is followed. A failure by the employer to follow the statutory minimum procedures will be automatically unfair dismissal (subject to one year’s qualifying service) and may also result in a tribunal increasing the compensatory award by between 10% and 50%.

There is nothing in the ERA 1996 to prevent an employer from dismissing an employee for no stated reason. However, if the employee complains to an employment tribunal that he or she has been unfairly dismissed, the employer may be unable to discharge the burden, which would then be upon him under the Act, to show the reason for dismissal, with the result that the dismissal will be declared unfair and appropriate compensation awarded against the employer.

Unilateral variation short of dismissal
The distinction between a unilateral variation of a contract by an employer, which amounts to the effective replacement of the original contract with something fundamentally different, and a unilateral variation which can be construed as not affecting the continuation of the existing contract, can be important in practice. The former will be a dismissal, and the latter not.

Automatically Unfair Dismissal
The employee will be found to have been automatically unfairly dismissed if the reason, or the principal reason, for the dismissal is prohibited by statue.

A dismissal will be automatically unfair where the reason, or the principal reason, for the dismissal is one of the following:-

Adoption Leave
For taking, or seeking to take, adoption leave under the 2002 Regulations.

Business Transfers
For the reason connected with the transfer of an undertaking.

Disciplinary and Grievance Hearings
For a reason relating to the statutory right to be accompanied at a disciplinary or grievance hearing.

Employee Representatives
For performing or proposing to perform the functions of an employee representative in the event of multiple redundancies and business transfers.

Fixed-term Workers
For attempting to exercise a right under the 2002 Regulations.

Flexible Working
For requesting a contractual change.

Health and Safety
Section 44(1) ERA 1996 provides that an employee has the right not to suffer any detriment by an employer's act, or deliberate failure to act, on the ground that: -

1. Having been designated by the employer to reduce or prevent health and safety risks, the employee carried out or proposed to carry out related activities;
2. The employee is the health & safety representative or member of a safety committee, appointed under statute or acknowledged by the employer, and performed, or proposed to perform, those functions;
3. As an employee where there is no representative or safety committee, or where it is not reasonably practicable to raise the matter by those means, the employee brought to his or her employers attention circumstances that he or she believed ere harmful or potentially harmful;
4. The employee left, proposed to leave, or refused to return to, his or her place of work or any dangerous part of it because he or she reasonably believed that there was serious and imminent danger which he or she could not reasonably have been expected to avert;
5. The employee took or proposed to take appropriate steps to protect himself, herself or others in circumstances of danger which he or she reasonably belived to be serious and imminent. However, no detriment will have occurred if the employer can show that the action taken was negligent.

An employee can complain to an Employment Tribunal and the employer must show the grounds on which any act or omissions were done.
• A person shall be regarded as having been unfairly dismissed if it is for any of the reasons set out above.
• Selection for redundancy for any of these reasons will also be regarded as unfair.
• The qualifying periods for unfair dismissal do not apply if dismissal is for any of these reasons.
• In cases of dismissal or selection for redundancy for either of the reasons above there will be no limit to the compensation payable.

Industrial Action
For taking part in protected industrial action.

Maternity Rights
In connection with pregnancy, childbirth or maternity.

National Minimum Wage
For attempting to exercise a right under the NMW Act and Regulations.

Part-time Work
Any attempt to exercise a right under the 2000 Regulations.

Paternity Leave
For taking or seeking to take paternity leave.

Pension scheme trustees
For performing or proposing to perform, the functions of an appointed trustee of an occupational pension scheme.

Spent Convictions
On account of convictions that is spent.

Sunday Work
For refusing to work in a shop or betting shop on a particular Sunday.

Tax Credits
For claiming a tax credit

Time off for dependants
For exercising a right to take time off to look after a dependent.

Time off for representatives
For taking part, or proposing to take part, in the activities of a recognised trade union.

Trade Union membership
For not being, or refusing to be a member of a recognised trade union, or taking part in trade union activities.

Whistle blowing
For making a qualifying disclosure in good faith.

Working Time Regulations
For attempting to exercise any right under the 1998 Regulations.

Work Councils
For activities as a member, or as a candidate for membership of a European council.

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