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Unfair dismissal and redundancy

Unfair dismissal and redundancy

Download Prospect's guide on redundancy.

How Prospect can help

Prospect officers have significant experience in assisting members to challenge unfair dismissals and redundancy issues.

Many problems are resolved at an early stage by Prospect representatives who take up cases and represent members in local hearings. The union's full-time officers are available to represent members in more serious cases and to advise in stages up to dismissal and appeal.

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Dismissal

There will be a dismissal in a legal sense if:

  • the employer actually terminates the employment
  • the employee resigns because the employer has committed a repudiatory breach of contract (constructive dismissal)
  • a fixed-term contract is not renewed.

Unfair dismissal

Under the Employment Rights Act, employees can usually only bring a claim of unfair dismissal if they have been continuously employed for two years. However, there is no qualifying period of service if you have been dismissed on any of the following grounds:

  • Maternity/pregnancy
  • Trade union membership or activities
  • For making a disclosure in the public interest (whistleblowing)
  • For asserting a statutory right at work
  • Being a pension trustee or workplace consultation representative
  • Health and safety (in specific circumstances)
  • For a reason related to a protected characteristic under the Equality Act.

Claims of unfair dismissal must be presented to the Employment Tribunal within three months of the date of termination.  

The first stage in bringing a tribunal claim is to apply to ACAS for 'early conciliation'. The conciliation period stops the clock for presenting the claim to the employment tribunal. These rules are complex so always seek advice from Prospect.

Employees must comply with any appeal process, otherwise their compensation could be reduced by up to 25%.

Redundancy

A redundancy situation is where the employer no longer requires workers of a particular kind, for example where the job disappears or the workplace closes.

Definition of redundancy

The legal definition of redundancy in the Employment Rights Act 1996 provides that a redundancy exists where the dismissal of an employee is wholly or mainly attributable to the fact that the employer:

  • has ceased, or intends to cease, carrying on business for the purpose of which the employee was employed, or
  • has ceased, or intends to cease, carrying on that business at the location where the employee was employed, or
  • no longer requires employees to carry out work of a particular kind, or
  • no longer requires employees to carry out work of a particular kind at the place the employee was employed.

Redundancies are likely to occur where there is a closure of a business or workplace, or a diminishing need for employees to do the work.

In addressing whether there is a redundancy situation the tribunal has to consider the employer’s requireme nts for someone to do the job the employee was employed to do. The fact that the work may still exist is not necessarily the issue, but rather whether the employer decides to have it done.

Where the work continues to be done but is shared out between other employees there can still be a redundancy situation, because there will be a need for fewer employees.

Fixed term contracts

When a fixed-term contract comes to an end it will be a redundancy if the reason for the non-renewal of the contract is that there is no longer any need for an employee to do that work.

For example, the end of a one-off project would be a redundancy situation, but if a maternity leave locum post comes to an end it would not be a redundancy situation because there is no reduction in the requirement for an employee. See Section 4.9 for information about equal rights to contractual redundancy payments.

Entitlement to redundancy payment

Employees who are dismissed because of redundancy will usually be entitled to a redundancy payment. This can either be a statutory payment at the minimum rate set by the law, or an enhanced contractual payment.

To be entitled to a payment the employee must:

  • be dismissed on the grounds of redundancy
  • not have unreasonably refused suitable alternative employment, and
  • meet the rules for a statutory or contractual redundancy payment.

 

There are strict time limits for making claims to an employment tribunal. For most types of claim, including unfair dismissal or discrimination, the process must be started within three months of the dismissal or incident occurring.  So it is extremely important that members seek advice as soon as possible.

Legal advice and assistance is offered at the union's discretion and is decided on the facts and merits of each case. See our legal advice guide for details of our services and the terms and conditions for advice.

The law is somewhat different in Northern Ireland, the Channel Islands and the Isle of Man. Members in these areas should contact their negotiator or Prospect's member contact centre for more information.