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Dismissals - Employee Rights after one year's service

Issue 1 - October 03

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If an employee has achieved one year’s continuous service, they are eligible under the Employment Rights Act (ERA) 1996 to bring a claim for unfair dismissal if they believe that their treatment has been unfair.

Under section 98 of the ERA 1996, five reasons for dismissal have been identified which include:

• Capability
• Conduct
• Redundancy
• Contravention of duty or restriction imposed by or under a statue
• Some other substantial reason that justifies the reason for dismissal

An employee will therefore have to prove that they have been dismissed, and the burden moves to the employer who will have to prove that the dismissal fulfils one of the above categories.

In every case a dismissal will only be held to be fair if standard procedures have been followed and dismissal is appropriate.

If an employee is dismissed for any reason as listed below, the dismissal will be deemed unfair. The list is a sample of reasons taken from sections 99 – 105 of the ERA 1996 and is supported by trade union related issues.

Reasons to be aware of include:

• Trade union related reasons such as, participation in protected and lawful industrial action
• Assertion of a statuary right
• Pregnancy/childbirth
• Performing functions as a trustee of an occupation pension scheme
• Being elected to and carrying out duties as an employee representative
• Health and safety related – carrying out duties or raising risks
• Reasons relating to statutory working time rights or obligations
• Assertion of rights under the National Minimum Wage Act 1998
• Assertion of rights to be accompanied / accompanying another worker to a disciplinary or grievance hearing
• A reason associated with making a protected disclosure
• Refusal to work Sundays by a shop worker or betting worker