Law guide: Employment

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Fairness of dismissal - special cases

Fairness of dismissal - special cases

Contents

Special cases

There are a number of special cases where normal rules relating to unfair dismissal are varied and they are set out in this section.

Dismissals for trade union reasons

Employees are free to join the trade union or not to join as they choose. Consequently it would be unfair for you to dismiss your employees either because they are or are not a member of a trade union.

If the employee is involved in the activities of an independent trade union, those activities should take place during the appropriate time. This would be either outside working hours or within working hours where you have agreed.

There is no qualifying period of continuous employment to bring a claim for unfair dismissal on the basis of his or her membership or activities within an independent trade union.

Industrial action

If you dismiss your employee for taking part in industrial action, for example strikes, whether the employee is prevented from issuing a claim for unfair dismissal at an employment tribunal will depend on whether the industrial action was official or unofficial. Official is where the industrial action is authorised or endorsed by a trade union. If none of the employees who participate in the action is a member of a trade union, then it is not deemed "unofficial" and therefore the employees have the same protection as though the industrial action was "official".

If, at the time of the dismissal your employee was taking part in unofficial industrial action, the employment tribunal has no jurisdiction to hear the employee's complaint of unfair dismissal. This is not to say that the dismissal is fair, but merely that the employee is not eligible to present a claim.

Therefore, you may dismiss an employee or any other of their fellow employees, such as the ringleaders, for taking part in unofficial industrial action without fear of a claim for unfair dismissal, so long as this is the principal reason for the dismissal. If the real or principal reason for the dismissal is jury service, family, health and safety, working time, employee representative, protected disclosure or flexible working cases, then the employee will not be prevented from presenting a claim to an employment tribunal.

The protections for those involved in "official" industrial action are more substantial. If an employee is participating in official industrial action at the date of his dismissal, you are immune from an unfair dismissal claim unless:

  • the dismissal is for an automatically unfair reason;
  • the dismissal is unfair under the rules on "protected industrial action"; or
  • the employer has selectively dismissed or selectively re-engaged relevant employees

To give an example, employees are dismissed during a lock out while taking part in an official strike or other industrial action. Provided none of the exceptions apply, they may not present a complaint that the dismissal is unfair, unless other employees of the same establishment were treated differently. For example, they were locked out or took part in the strike or other industrial action, and either not dismissed, or dismissed but were offered re-engagement within three months of the dismissal.

If all the other employees taking part in the industrial action are dismissed and not re-engaged within three months, the tribunal cannot hear any complaints of unfair dismissal.

If some employees are singled out either for dismissal or non re-engagement, within three months an employee may present a claim of unfair dismissal in the normal way. You will have to show a reason for dismissal or non re-engagement and the tribunal must decide whether you acted reasonably. In other words, you must have some justifiable explanation for singling out a particular employee.

The rules regarding industrial action are complex and an employer should take specific advice before taking any action against employees involved in industrial action.

Dismissal for asserting a legal right

If you elect to dismiss your employee because they have brought proceedings against you to enforce a legal right, or they allege that you have infringed a right, a dismissal will be seen to be unfair and there is no qualifying period of continuous employment necessary to bring the claim.

Health and safety dismissals

Where your employee stops his or her job on health and safety grounds, it would be regarded as unfair if you dismissed the employee on those grounds. No period of continuous employment is required.

In the case of pregnancy or maternity related dismissals, dismissals for trade union reasons, dismissals for asserting a legal right, health and safety dismissals and dismissals for reasons connected with a transfer of a business, the dismissal will automatically be unfair. This means that the tribunal will not have to consider the reasonableness of the decision.

Whistleblowing

'Whistleblowing' occurs when an employee or former employee of an organisation reports employer misconduct to people or entities that have the power to take corrective action. Under the Public Interest Disclosure Act 1998 (or the Public Interest Disclosure (Northern Ireland) Order 1998), an employee must not be dismissed for making a 'protected disclosure'. For a disclosure to be protected by the legislation's provisions it must relate to matters that 'qualify' for protection under the act.

In England, Wales or Scotland, qualifying disclosures are disclosures made in the public interest. This means that the employee or former employee raises the concern because it affects other people, e.g. members of the public. In Northern Ireland, qualifying disclosures are disclosures made in 'good faith' (i.e. one that was made honestly). A worker can make a qualifying disclosure if they believe that one or more of the following matters is either happening now, has happened, or is likely to happen:

  • A criminal offence
  • The breach of a legal obligation
  • A miscarriage of justice
  • A danger to the health and safety of any individual
  • Damage to the environment
  • Deliberate concealment of information tending to show any of the above five matters

A worker needs to show that they have a 'reasonable belief' that the employer has committed one of the qualifying offences. The employee will then be protected if they make a qualifying disclosure to their employer or to one of a limited category of people, e.g. a government minister or an appropriate regulatory authority. See the Public Interest Disclosure (Prescribed Persons) Order 1999 (or Public Interest Disclosure (Prescribed Persons) Order (Northern Ireland) 1999) for a list of specified organisations.

The act stipulates that an employee should, in the first instance, raise concerns with his or her employer or the appropriate regulatory authority, e.g. the Health and Safety Executive. In other cases, where disclosures are made in the wider public domain, e.g. to the press, more stringent conditions apply.

A disclosure attracts protection only where an employee satisfies the precondition that he or she has previously disclosed the matter to the employer or a prescribed body, (or can show that he or she has not done so because of a reasonable belief that he or she would be victimised, or that disclosure would lead to evidence being concealed or destroyed). He or she must also:

  • Ensure that the disclosure is in the public interest (England, Wales and Scotland only)
  • Make the disclosure in good faith (Northern Ireland only)
  • Reasonably believe that the information is substantially true
  • Not act for personal gain
  • Act reasonably

The legislation sets out a number of factors to be considered by a tribunal in deciding whether an employee acted reasonably in making the disclosure through external channels. These include:

  • The seriousness of the failure complained of
  • Whether the disclosure breaches the duty of confidentiality between the employer and another person
  • Whether the disclosure was made in accordance with any internal procedures approved by the employer

In the cases of an 'exceptionally serious failure', an external disclosure will be protected without an employee having to satisfy the precondition of prior notification to his or her employer, as is required for other external disclosures. It is not possible for either an employee or an employer to contract out of the legislation, and any agreement to that effect is void to the extent that it restricts the making of protected disclosures.