To be eligible to bring an unfair dismissal claim, an individual must have worked for the company either as an employee or as an apprentice. Workers who do not meet the legal tests of employee status (employment status) therefore do not qualify.
If the reason why the employee was dismissed falls within one of the categories of dismissal that are automatically unfair, as set out further on in this section (evidence as to the reason ), then he or she usually has the right to claim unfair dismissal regardless of his or her length of service. In all other cases, however, the individual must have worked for the company for at least one continuous year in order to qualify.
There are three anomalies here. The one year qualifying period applies where the dismissal is automatically unfair because the empoyer failed to follow the statutory minimum dismissal procedure ( minimum dismissal procedures ). Likewise, If an employee is dismissed for a reason connected with the transfer of a business, the dismissal may be automatically unfair. Nevertheless, the employee must have one year's continuous service in order to bring an unfair dismissal claim on this ground. (The employment law issues that arise on a business transfer are explained elsewhere in this Guide ( Transfer of undertakings ).) A dismissal for retirement may be unfair if the employer has not followed the procedure for lawful retirement dismissals, but only if the employee has one year’s service.
If a company decides not to renew the contract of an employee working under a fixed-term contract, unfair dismissal law views that as a dismissal.
Likewise, if an employee has a contract that states it will last until a particular task is completed or a particular event occurs, and the employer decides not to renew the contract when the task is completed or the event happens, unfair dismissal law views that as a dismissal.
In certain limited circumstances, employees who are dismissed while taking part in industrial action are excluded from the right to claim unfair dismissal (the position of individual employees).
The rules on calculating continuous service are laid down in the Employment Rights Act 1996 and are summarised elsewhere in this Guide ( Calculating qualifying periods ). It is important to note that continuous service does not depend on the number of hours an employee works each week.
Furthermore, in some circumstances, service with a previous employer can count towards an employee's continuous service with the company, and so can breaks between separate contracts with the same company.
An employee's qualifying service for unfair dismissal is measured up to the 'effective date of termination' of the employee's employment. Broadly speaking, this is the date when his or her contract ends (extending the effective date ). Therefore, if the employee has been dismissed without notice, his or her service ends with the day on which he or she was notified of the dismissal. If the employee was dismissed with notice, then his or her service ends with the day that the notice expired, regardless of whether the employee is required to work during the notice period or is given garden leave (garden leave ). If the employee was dismissed with immediate effect but then appealed against the decision to dismiss, service still ends on the day he or she was dismissed, unless his or her contract states otherwise. An employee may decide to resign after being given notice of dismissal. In that event, he or she is still viewed as having been dismissed, but his or her service ends with the day the resignation takes effect.
A decision not to renew a fixed-term contract is viewed as a dismissal in unfair dismissal law. In this type of case, the employee's service ends with the day on which the fixed term expired. In the same way, where a contract is stated to last until a particular task is completed or a particular event occurs and it is not renewed, the employee's service ends on the day the task is completed or the event happens.
Where the employee has resigned in response to a serious breach of contract by the company and is alleging constructive dismissal, his or her service ends when that resignation takes effect. If the employee resigned without notice, service ends with the day on which the company learns of the resignation. If the employee chose to give notice of resignation (which he or she was not obliged to do), then service ends at the end of the notice period.
It is important to note that in certain limited circumstances the employee's effective date of termination is postponed beyond the end of his or her contract. This special rule applies where:
- the employee was dismissed without notice unless the employee had forfeited the right to notice by acting in serious breach of contract, such as by committing an act of gross misconduct or
- the employee was dismissed with notice, but the notice he or she was given was less than the minimum period of notice to which he or she was entitled under the Employment Rights Act 1996 (minimum notice periods ).
In these circumstances, the employee's service is extended to the date it would have ended if he or she had been given the statutory minimum period of notice. For example, if an employee who has been with the company since 2 June 2005 is dismissed without notice on 28 May 2006, his or her service is extended to 4 June 2006. This means that the employee qualifies for the right to claim unfair dismissal, even though he or she has not actually worked for the company for one complete year.
It is important to note that this special rule extends the employee's service by only the statutory minimum notice period, not by any longer contractual notice period to which he or she may be entitled. Further, the rule does not apply when deciding whether the employee has met the three-month time limit for making a claim of unfair dismissal to an employment tribunal. The time for bringing a claim runs from the date that the employee's contract actually ended.