15810_bigThe Chancellor, George Osborne, at the Conservative Party conference last weekend confirmed that the Government would double the qualification period needed for employees to be able to claim unfair dismissal – from 1 year (which it is now) to 2 years – from April 2012. A fee will also be introduced for employees who lodge a tribunal claim (for more information see our article on how you can bring a claim to an Employment Tribunal).

This is part of the Government’s efforts to encourage growth and employment and the change had been widely speculated on during 2011. Only last week a Department of Business document entitled “One-in, One-out; Second Statement of New Regulation” revealed the change was imminent, although this was quickly denied as a ‘drafting’ error.

Reaction to the announcement has of course been mixed with the CBI calling it a ‘positive step’ that would give ‘employers, especially smaller ones, more confidence to hire’ and the British Chambers of Commerce also supporting the move.  However Unions accused the Government of eroding worker’s rights for little economic gain; Unite said “how will attacking worker’s ability to secure justice create one single job? All it will do is create a hire and fire culture where bad employers cannot be challenged”.

The Chartered Institute for Personnel warned that doubling the unfair dismissal threshold would probably not reduce the overall number of employment tribunal claims, as employees are increasingly bringing discrimination claims, which won’t be affected by this change (you can bring a discrimination claim from Day 1 of your employment, and generally workers and freelancers can also bring discrimination claims).

In 2010 there were 236,000 cases of unfair dismissal at Employment Tribunals, with an average award for successful cases of nearly £9,000.

The TUC also firmly oppose the plans to introduce fees for employees to lodge a claim at employment tribunal and says this will have a disproportionate impact on low paid workers (according to a 2008 survey, nearly 70% of tribunal claimants have average or below average earnings).

More information about unfair dismissals

It’s worth remembering that from 1st October 2011 the default National Retirement Age of 65 has been removed, so if you are dismissed for reaching ‘retirement age’ you may have an unfair dismissal claim.  Also, this means that before 1st October 2011 you could not bring a claim for unfair dismissal over the age of retirement – but after 1st October 2011 you can bring a claim for unfair dismissal at any age.

So who is eligible to claim unfair dismissal?

1.  Can you make a claim for unfair dismissal?

Certain professions cannot ever claim this (armed forces members, police officers, self-employed workers/freelancers/independent contractors, share fishermen, registered dock workers, people that work outside of the UK).

2.  Have you actually been dismissed?

You are dismissed when your Employer brings your contract to an end.  All the following are dismissals:

  • Your employer ends your employment with or without notice
  • Your employer does not renew a fixed term contract that has run out
  • You are made redundant
  • Your employer refuses to take you back after a strike or lockout
  • Constructive dismissal. This is when your employer makes it impossible for you to carry on working so you resign
  • You resign under pressure from your employer
  • If you are a woman on maternity leave, and your employer refuses to allow you to return to work after maternity leave
  • You have been laid off or put on short time working when your contract does not allow for this.

 

The following are not dismissals:

  • You resign without any pressure from your employer or leave by mutual agreement
  • You are suspended on full pay
  • Your employer withdraws a job offer before you start work where the offer was conditional upon something and these were unsatisfactory (e.g. references, medical examination, CRB check etc.)
  • Your circumstances change and you can no longer continue to work for your employer. This is known as frustration of contract (for example imprisonment of the employee)

 

3.  Have you been discriminated against?

See our article about the Equality Act – if you have been discriminated against you do not need any particular length of service to claim this.  If you have been dismissed for a discriminatory reason you may have been unfairly dismissed as well (but you would need one year’s service to claim unfair dismissal as well).

4.  You must have worked for your Employer for one year

See above. You must have been employed for one year, in most cases, to make a claim for unfair dismissal, although there are exceptions to this, in cases of ‘automatic unfair dismissal claims’.

The following are deemed automatically unfair reasons for being dismissed (or selected for redundancy) and do not require a particular service length (unless stated):

  • For following up your legal rights (i.e. making a claim to an Employment Tribunal) regarding, for example, not receiving a written statement of your terms and conditions of employment, not receiving the National Minimum Wage, not being able to use a grievance procedure or disciplinary procedure, or not receiving your rights under the Working Time Regulations
  • If you are pregnant and take or ask to take statutory maternity leave, or take or ask to take paternity leavepaternal leave or adoption leave
  • If you ask to become a trade union member, or refuse to join a union
  • If you complain or propose to complain about a health and safety problem or report wrongdoing at work (whistle-blowing and bribery)
  • Taking part in official industrial action that lasts less than 12 weeks (however, if you take part in unofficial industrial or strike action you cannot claim unfair dismissal)
  • Taking time off for jury service
  • Asking to work flexibly if you have the right to
  • Having been discriminated against for refusing to work Sundays in a shop or betting shop
  • If your company has been taken over by a new owner (you need one year’s service)
  • If you have not declared a spent conviction (you need one year’s service)

 

If you have not been dismissed for one of the reasons above then the dismissal may have been fair or unfair depending on the reason for it and the procedures followed by your employer in dismissing you. You must have worked for one year for your employer in order to make a claim to an employment tribunal where you have been dismissed for one of the following reasons:

  • Your employer says you are not capable of doing the job, or your employer says you do not have the necessary qualifications to do the job
  • Your employer says your conduct has been poor
  • Your employer says you have done something illegal
  • Your employer says you are redundant
  • Some other reason your employer has given for dismissing you.

 

See our Guide to how your Employment can come to an end for more details.

5.  Three month time limit

It is important to remember that there is a three month time limit starting from the date the employee is dismissed, during which they must make a claim to an employment tribunal.

Workline is supported by Employment Lawyers Goodman Derrick LLP.  Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.

Photo by Kheel CenterCC