Dismissal, unfair dismissal and TUPE transfer

Dismissal, unfair dismissal and TUPE transfer

A dismissal occurs when:

  • The employment contract is terminated by the employer, with or without notice
  • A fixed term is not renewed
  • The employee resigns in response to a serious breach of the employment contract (known as constructive dismissal)
  • An employee is threatened with dismissal unless they resign;
  • A contract ends because of a redundancy situation (voluntary or compulsory)
  • There is a refusal because of a serious detrimental change to working conditions resulting from a

TUPE transfer

To be dismissed, the employment contract must have ended. There has not been a dismissal if the employee ends the relationship by resigning voluntarily.

However an employee forced to resign, could have a claim for constructive dismissal, and should make a record of any exchanges with the employer that has led to the employee making the decision to resign. In this instance a member should ensure that their UCATT rep is kept up to date with all communication. It has to be proven that the employee was forced to resign as the employer’s behaviour amounted to a breach of contract so serious that it leaves him or her with no option but to resign.

Unfair Dismissal

Some dismissals can be considered to be automatically unfair when they relate to issues such as:

  • Dismissal related to pregnancy or maternity leave
  • A dismissal connected with the transfer of business is unfair under TUPE Regulations
  • Dismissal for being a member of a trade union or taking part in trade union activities
  • Dismissal that relates to the employer’s use of a blacklist
  • Exercising rights to be accompanies or to act as a companion
  • Taking part in legal industrial action
  • Enforcing a statutory right, such as holiday pay
  • Health and Safety reasons, such as carrying out the role of safety representative
  • Whistleblowing, making a protected disclosure in the public interest
  • For shop workers refusing to work on a Sunday
  • Being an employee representative, or being a member of a European Works Council and carrying out associated duties

Increase in qualifying period for Unfair Dismissal Claims

Since April 6th 2012, employees will normally require two years’ service before they can bring a claim for unfair dismissal. Prior to that they only needed one years’ service. This only applies to those starting a new job on or after 6th April 2012. Employees whose employment service started before April 6th can still bring claims with one years’ service.

For instance, someone with 13 months service at April 6th 2012 has the right to bring forward an unfair dismissals claim. Equally, someone with 4 months service at April 6th 2012, has only to be employed a further 8 months to bring forward a claim because their period of employment started prior to April 6th 2012.

Someone that is dismissed before the qualifying period of two years for unfair dismissal, may be eligible to make another type of claim that does not require one or two year’s employment before they are made. These may include claims such as Trade Union related dismissals, and dismissals for protected disclosures (whistle blowing) as well as discrimination claims. Should any member be considering making this type of claim it is best that they firstly speak to the local UCATT office for expert advice.

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