Unfair dismissal qualifying period: exceptions

Sarah-Marie Williams and Katie Lamb of Clyde & Co LLP continue a series of articles on the unfair dismissal qualifying period with a look at some of the reasons for dismissal that do not require a period of qualifying service for the dismissed employee to be able to lodge an unfair dismissal claim. Where a dismissal is for one of a number of specified reasons, it will be automatically unfair and the employee will not need to have acquired the two years' service now needed to claim unfair dismissal. 

Introduction

Under s.108(1) of the Employment Rights Act 1996, to be able to claim unfair dismissal, a dismissed employee must generally have sufficient continuous service with the employer at the effective date of termination. The service requirement increased from one year to two years on 6 April 2012 (see Unfair dismissal qualifying period: overview in this series for more details). However, s.108(3) sets out a list of reasons for dismissal that do not require the employee to have a period of continuous service with the employer to be able to claim unfair dismissal. These are dismissals that are defined in certain sections of the Act as automatically unfair. In this article, we look at some of the key reasons for dismissal that are automatically unfair and for which there is no qualifying service period.

Maternity and family-related reasons

Under s.99 of the Employment Rights Act 1996 and various regulations, where an employee is dismissed or selected for redundancy for a reason related to pregnancy or giving birth, or for taking maternity leave, paternity leave, adoption leave, parental leave or time off to care for dependants, the dismissal will be automatically unfair.

Asserting statutory rights

Under s.104 of the Employment Rights Act 1996, a dismissal is automatically unfair if the reason that the employer dismissed the employee was that he or she:

  • brought a claim against it (for example in an employment tribunal) to enforce a relevant statutory right; or
  • alleged (for example by raising a complaint or a grievance) that the employer breached a relevant statutory right.

The relevant statutory rights include: rights under the Act that can be enforced in an employment tribunal; notice rights; various rights relating to trade union membership; rights under the Working Time Regulations 1998 (1998/1833); and TUPE-related rights.

The Court of Appeal has confirmed that the allegation need not be correct provided that the claim is made in good faith (Mennell v Newell & Wright (Transport Contractors) Ltd [1997] IRLR 519 CA).

Employees can claim that their dismissal was for asserting a statutory right without having referred in that assertion to the fact that the right is grounded in statute. In Armstrong v Walter Scott Motors (London) Ltd EAT/766/02, the employee stated that the company's policy of restricting his right to paid holiday was "morally indefensible" and not in accordance with what had been agreed at his interview. The EAT found that the employee had made it clear that he had a right, in common with other workers, regarding paid holiday, and that he was clearly alleging that his employer had breached his rights under the Working Time Regulations 1998. His dismissal was for this reason and therefore fell within s.104.

Health and safety

Employees are protected in relation to dismissals for health and safety reasons by s.100 of the Employment Rights Act 1996. A dismissal is unfair where the employee is dismissed in specified circumstances including the following:

  • Where the dismissal is because the employee carried out the functions of a health and safety representative or member of a safety committee.
  • Where the dismissal is because the employee left the workplace, refused to return to work, or took steps to protect him- or herself or others in circumstances of danger where he or she reasonably believed that the danger was serious and imminent. In Oudahar v Esporta Group Ltd [2011] IRLR 730 EAT, in which an employee refused to mop an area of floor near exposed wires, the EAT noted that it was irrelevant that the employer disagreed with the employee as to whether or not there were circumstances of danger or whether or not the steps were appropriate. The case highlighted that the focus is on the employee's, rather than the employer's, state of mind.
  • Where the dismissal is because the employee brought health and safety risks to the employer's attention where there was no appropriate representative or committee or it was not reasonably practicable for the employee to use those channels.

Working time and the national minimum wage

Certain dismissals connected to the Working Time Regulations 1998 are automatically unfair under s.101A of the Employment Rights Act 1996. For example, a dismissal is automatically unfair if the reason for it is that the employee refused (or proposed to refuse) to comply with a requirement that the employer imposed on him or her that contravened the Regulations. This would include situations in which an employer dismissed an employee for refusing to work on average more than 48 hours a week, where he or she had not signed an opt-out.

In Ajayi and another v Aitch Care Homes (London) Ltd EAT/0464/11, the EAT acknowledged that the "refusal" or "proposed refusal" to accept an employer's contravention of the Regulations had to be communicated in advance.

Under s.104A of the Act, an employee is unfairly dismissed if the reason for the dismissal is that:

  • action was taken (or was proposed to be taken) to enforce or secure on behalf of the employee certain rights under the National Minimum Wage Act 1998;
  • the employer has been prosecuted under the national minimum wage provisions as a result of action taken by or on behalf of the employee; or
  • the employee qualifies for the national minimum wage.

Part-time workers and fixed-term employees

If a part-time worker is dismissed for asserting or exercising rights under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551), this will be automatically unfair. Similarly, a fixed-term employee who is dismissed for exercising rights under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (SI 2002/2034) is automatically unfairly dismissed.

For example, a part-time worker who is dismissed because he or she asked the employer for the same hourly rate of pay as a comparable full-time worker is automatically unfairly dismissed, as is a fixed-term employee who is dismissed for asking for the same benefits as a comparable permanent employee.

Sunday workers

Section 101 of the Employment Rights Act 1996 concerns shop and betting workers who are "protected" or who have opted out of Sunday working (see the Sunday working for shop and betting workers section of the XpertHR employment law manual for more details).

These workers are automatically unfairly dismissed if the reason for their dismissal is that they refused to work on Sunday or on a particular Sunday. They are also protected if the reason for the dismissal is that they gave (or proposed to give) notice opting out of Sunday working to the employer.

Flexible working

If the reason for a dismissal is connected to the employee's request for a flexible pattern of work under the flexible working provisions, this will be automatically unfair (s.104C of the Employment Rights Act 1996).

Jury service

An employee who is dismissed because he or she has been summoned to serve as a juror or has been absent from work fulfilling this duty is protected by s.98B of the Employment Rights Act 1996. However, where the employee's absence is likely to cause "substantial injury" to the employer's business, and he or she unreasonably failed to apply for an excusal or deferral of the summons, the dismissal is not automatically unfair.

Grievance and disciplinary companions

Under s.12 of the Employment Relations Act 1999, a worker is automatically unfairly dismissed if the reason for the dismissal is that he or she exercised (or sought to exercise) the right to be accompanied at a grievance or disciplinary hearing, or accompanied (or sought to accompany) another worker at a grievance or disciplinary hearing.

In Evans v Open Sight ET/3100599/11, Mrs Evans accompanied colleagues at disciplinary and grievance hearings. The employer dismissed her, citing the reason as capability and conduct. The employment tribunal found on the facts that the principal reason for the dismissal was related to Mrs Evans having acted as a representative for colleagues. In reaching this decision, the tribunal relied on the fact that the allegation of underperformance was inconsistent with the evidence of other employees and had not been addressed prior to Mrs Evans' probationary review meeting.

Trade union membership and activities and protected industrial action

Dismissal for:

  • being (or proposing to become) a member of an independent trade union;
  • refusing to be a member of a trade union or particular trade union; or
  • taking part (or proposing to take part) in the activities of an independent trade union at an appropriate time

is automatically unfair under s.152 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A).

An "appropriate time" is time outside working hours or within working hours if the time is agreed with the employer. Agreement can be express or implied through custom and practice.

Section 238A of TULR(C)A provides that employees are automatically unfairly dismissed if the reason for the dismissal is that they took "protected industrial action" (see The impact of the Employment Relations Act 1999 in the Handling industrial action section of the XpertHR employment law manual for details).

Blacklisting

Employees whose dismissal relates to their being on a blacklist by reason of their trade union membership or activities will have been automatically unfairly dismissed under s.104F of the Employment Rights Act 1996.

Whistleblowing

Employees who make a public interest disclosure against their employer (known as "blowing the whistle") are protected against dismissal under s.103A of the Employment Rights Act 1996. The dismissal is automatically unfair where the only or principal reason for the dismissal is that the employee made a protected or qualifying disclosure.

Further reasons

There are further reasons for dismissal that are automatically unfair and that do not require a period of continuous service for the employee to be able to claim unfair dismissal that have not been covered in this article. For a full list of reasons see the Automatically unfair reasons for dismissal table in the XpertHR quick reference section.

The next topic of the week article will be a case study around the unfair dismissal qualifying period and will be published on 21 May.

Sarah-Marie Williams (Sarah-Marie.Williams@clydeco.com) is a legal director and Katie Lamb (Katie.Lamb@clydeco.com) is a trainee at Clyde & Co LLP.

Further information on Clyde & Co LLP can be accessed at www.clydeco.com.