Employees can usually only claim unfair dismissal if they have worked for you for at least one year.
There are a number of reasons for dismissal that are automatically unfair. Most of these do not require the employee to have a minimum of one year's service, ie the employee will be able to claim unfair dismissal from day one of employment.
Who cannot complain to a tribunal about unfair dismissal?
The right to complain to a tribunal about unfair dismissal is also not available to:
- Self-employed people.
- Those who are not employees, eg casual workers, independent contractors or freelance agents.
- Members of the armed forces.
- Employees who have reached a settlement with their employer via Labour Relations Agency (LRA) conciliation.
- Individuals working under an illegal contract, eg a barman who is under the age of 18 or employees in receipt of untaxed monies.
- Employees covered by a dismissal procedure agreement that has been exempted from the unfair dismissal provisions by legislation. This is a rarely exercised legal provision.
- Employees taking part in unofficial industrial action (unless the dismissal is for certain specified reasons, eg taking family leave or making a protected disclosure). For more information, see the page in this guide on dismissals relating to industrial action.
- The police (although police staff may make unfair dismissal claims where the dismissal relates to health and safety or the making of a protected disclosure).
- Those employed as a master - or as a member of the crew - of a fishing vessel where the individual is paid only by a share in the profits or gross earnings of the vessel.
- Employees who have reached a settlement with their employer via a 'compromise agreement'. This is an agreement reached, with the benefit of a relevant independent advisor who has professional indemnity insurance, in which the employee waives their right to make a complaint in relation to the dispute to which the settlement relates. This means that the agreement must specify the legal basis for the dispute - it cannot state that it covers all the possible employment-related claims.
Exemption from the unfair dismissal provisions
The parties to a dismissal-procedures agreement can apply jointly to the Department for the Economy to substitute provisions of the unfair dismissal legislation. Such substitution may be allowed if all the following points are satisfied:
- every trade union which is a party to the agreement is independent
- the agreement has a procedure to be followed if an employee claims to have been unfairly dismissed
- the procedure is non-discriminatory and available to all relevant employees
- the procedure gives employees a similar level of protection to that provided by the legislation
- the agreement includes provision either for arbitration in every case or allows arbitration in cases where a decision can't be reached or where a decision raises a question of law
- the agreement clearly defines which employees it applies to
Lay-offs and short-time working
You may temporarily lay off an employee or put them on short-time working, eg because of a downturn in work. This does not necessarily amount to a redundancy dismissal. You can only do this if the terms of their contract of employment allow it or by agreement with the employee. See Employers' Handbook Section 23: Lay-off and short time working (PDF, 33K).