Although employees must reach a set qualifying period before they can make a claim for unfair dismissal, there are a number of other factors that employers need to consider in order to be in the clear.
Any employee who is making a claim to an Employment Tribunal for unfair dismissal, will need to have completed a qualifying period. From 6 April 2012, the qualifying periods have been:
• for employees starting new employment on or after 6 April 2012 the qualifying period for the right to claim unfair dismissal is two years and the right to request a written reason for dismissal is two years
• for employees in employment before 6 April 2012 the qualifying period is unchanged at one year - the right to request a written reason for dismissal is unchanged at one year. It follow on from this that after 6th April 2014, there will be no employees subject to the one year qualifying period.
A dismissal could be unfair if an employer doesn’t have a good reason for dismissal or if they fail to follow the company’s formal disciplinary or dismissal process.
Dismissing an employee on account of the following could be considered unfair:
- asking for flexible working
- refusing to give up their working time rights
- resigning and giving the correct notice period
- joining a trade union
- taking part in legal industrial action that lasted 12 weeks or less
- needing time off for jury service
- applying for maternity, paternity and adoption leave
- taking any maternity, paternity and adoption leave entitled to
- enforcing their right to receive Working Tax Credits
- exposing wrongdoing in the workplace (whistleblowing)
- being forced into compulsory retirement
If an employee has taken independent legal advice and reached a 'compromise agreement' with the employer, where they have agreed not to make an unfair dismissal complaint, then they cannot then make a complaint to an Employment Tribunal.
The employee is also required to make the unfair dismissal claim to an Employment Tribunal within three months of being dismissed.
An employee can however make a claim for wrongful dismissal in a much wider range of circumstances than for unfair dismissal. Essentially this means that you must follow company procedures or take action in accordance with the contract if disciplinary issues or procedures are covered. The awards for wrongful dismissal are normally a lot less than for an unfair dismissal, but employers should still be cautious to avoid these claims, as there will be costs to defend any action.
The qualifying period includes the notice period. You may also wish to consider pay in lieu of notice depending on the circumstances. Payment in lieu of notice is an alternative to being given their full notice (this can be paid without deduction of tax, unless payment in lieu of notice is a contractual provision for the termination of employment).
Whilst outstanding holidays will not have any effect on the length of service, they must receive pay for any holiday they are entitled to in the current leave year but have not taken.
BWF members are also reminded that unfair dismissal rights (apart from protection against automatically unfair dismissals such as those linked to discrimination and Health & Safety) and redundancy can be given up by an employee as part of the recently introduced 'Employee Shareholder' status. Some employment rights have to remain such as minimum wage, statutory sick and maternity pay.
While employees will require at least one year’s service before they can bring a claim for unfair dismissal, this requirement does not exist for claims where the dismissal alleged to be unfair includes a dismissal due to:
- Pregnancy, childbirth, the employee taking maternity or paternity leave, adoption leave, parental leave, or time off to look after dependants.
- A business being sold or transferred.
- Trade union membership or taking part in trade union activities.
- The employee seeking to exercise their legal rights.
- The employee carrying out their function as a trade union or workplace representative, or a pension scheme trustee.
- The employee making a “protected disclosure” – whistleblowing.
- Sex, marital status, gender reassignment, race, colour, nationality, ethnic origins, sexual orientation, or religion.
- The employee being selected for redundancy for any of the above reasons.
While they may not have as many rights as longer-established employees, if an employee can get a claim accepted by an employment tribunal on the basis of an automatically unfair dismissal, it won’t matter much if this claim has no validity or is not the real reason for dismissal: the case will still have to be defended at potentially significant cost to the employer.
For more information on this topic, including disciplinary and redundancy advice we offer as part of our business support package for members, please follow this link to our Employment Publications. The BWF has a number of resources that members can download including these guides and template documents:
- Terms of employment template
- Employee Handbook template
- Disciplinary guidance
- Long term sickness guidance
- Tribunal guidance
- Appraisal guidance
- Age Discrimination guidance