Unfair dismissal during an industrial dispute |
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| Introduction |
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| This article outlines an employer’s obligations under current employment protection legislation. Under this legislation, employees who meet various qualifying conditions have the right not to be unfairly dismissed. Employees who have been unfairly dismissed are able to seek a remedy by complaining to an employment tribunal. |
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| Net Lawman provides a number of other information articles on dismissal. We recommend you read them first and then read this article on dismissal for pregnancy or maternity if it applies to you. The primary articles can be accessed here. |
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| Having read the two primary articles, you will already know how dismissal is defined, the different types and the time limits for making a claim. |
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| The general position |
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| It is automatically unfair to dismiss workers for taking lawfully organised official industrial action lasting eight weeks or less (where they started taking the action on or after 24 April 2000). It is also unfair to dismiss them where they have taken action for more than eight weeks if the employer has not first taken such procedural steps as are reasonable to resolve the dispute. |
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| It will be for the employment tribunals to determine whether an employer has taken all reasonable steps, and in doing so, they will have regard to the behaviour of both the employer and the union. |
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| An employment tribunal has no power to determine a complaint of unfair dismissal from an employee dismissed while participating in official industrial action provided his or her employer, except in the following circumstances: |
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- Where the employer has dismissed all who were taking part in the action at the same establishment as the complainant at the date of his or her dismissal, and;
- Where the employer has not offered re-engagement to any of them within three months of their date of dismissal without making him a similar offer.
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| Similarly, an employment tribunal has no jurisdiction to determine a complaint of unfair dismissal from an employee dismissed while participating in unofficial industrial action. |
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| There are exceptions to this general rule. These apply where the main reason for the dismissal was: |
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- The taking by the employee of certain specified types of action on health and safety grounds;
- On maternity related grounds (see Dismissal on the grounds of pregnancy or maternity);
- In respect of the taking by the employee of certain specified types of action as an employee representative or as a candidate to become an employee representative or as a participant in the election of such a representative (see Dismissal relating to activities as an employee representative); or
- Because the employee exercised rights under the Working Time Regulations 1998, or;
- Because the employee exercised rights prescribed in the Maternity and Parental Leave etc Regulations 1999, or;
- Because the employee asserted the right to time off for dependants.
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