Asserting a statutory right in unfair dismissal

Could I have a claim for automatic unfair dismissal for asserting a statutory right?

You could have a claim for automatic unfair dismissal if you are dismissed by your employer as a direct result of the fact that you have asserted one or more statutory rights. You will find below a full list of your main statutory employment rights.

Please note that you do need to make a complaint before you are dismissed as the ability to claim unfair dismissal arises out of you actually asserting a statutory right- its not about having the statutory right in itself.

The Tribunal would consider the following factors:

Did the employee assert infringements of a statutory right (like unlawful deduction from wages) to the employer before his dismissal? (the assertion needs to be made before the dismissal);

If so was the assertion made in good faith? If yes, then the tribunal will ask whether the reason/principle reason for the decision to dismiss the employee was the fact that he had asserted a statutory right to the employer? (The reason for the dismissal is the key).

General Statutory rights

· Written particulars of employment – Section 1, Employment Rights Act 1996 (ERA 1996)

· Statutory sick pay (SSP) – Statutory Sick Pay (General) Regulations 1982

· Protection against unlawful deduction from wages – Section 13, ERA 1996

· Itemised pay statement – Section 8, ERA 1996

· Guarantee payments – Section 28, ERA 1996

· Certain payments on insolvency – Part XII, ERA 1996

· Remuneration during suspension on medical grounds – Section 64, ERA 1996

· National minimum wage – Section 1, National Minimum Wage Act 1998

· Paid annual leave = Regulation 13, Working Time Regulations 1998 (SI 1998/1833) (WTR)

· Rest breaks – Regulation 12, WTR

· Maximum working week – Regulation 4, WTR

· Protection on the transfer of undertakings – TUPE

· Right to be accompanied at a disciplinary or grievance hearing – Section 10, Employment Relations Act 1999

· Protection for making a protected disclosure (whistleblowing) – Part IVA, ERA 1996

· Vicarious liability of the employer for the employees’ tortious acts – N/A

· Not to be refused employment because of membership or non-membership of a trade union – Section 137 TULRCA

· Protection under the Data Protection Act 2018 – Data Protection Act 2018

· Right of shop and betting workers to refuse to work on a Sunday – Part IV, ERA 1996

· Right to pension contribution from employer under the auto-enrolment scheme – Pensions Act 2008

Families and Pregnancy

Statutory right

· Statutory maternity pay (SMP) – Social Security and Benefits Act 1992

· Statutory paternity pay (SPP) -Social Security and Benefits Act 1992

· Statutory adoption pay (SAP) – Social Security and Benefits Act 1992

· Shared parental pay (ShPP) – Social Security and Benefits Act 1992

· Parental leave – Regulation 13, Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312)

· Ordinary maternity leave (OML) – Section 71, ERA 1996

· Additional maternity leave (AML) – Section 73, ERA 1996

· Statutory paternity leave – Sections 80A-E, ERA 1996

· Statutory adoption leave – Sections 75A-D, ERA 1996

· Shared parental leave (SPL) – Sections 75E-K, ERA 1996

· Request flexible working – Sections 80F-I, ERA 1996

· Not to be suspended on maternity grounds – Sections 66-68, ERA 1996

Discrimination

Statutory right

· Right not to be treated less favourably because of age, disability, gender reassignment, marriage or civil partnership, pregnancy or maternity, race, religion or belief, sex or sexual orientation – Section 13, Equality Act 2010 (EQA 2010)

· Right not to be treated unfavourably because of pregnancy or maternity – Section 18, EQA 2010

· Right not to be indirectly discriminated against in relation to age, disability, gender reassignment, marriage or civil partnership, race, religion or belief, sex or sexual orientation – Section 19, EQA 2010

· Right not to be treated unfavourably because of something arising in consequence of a disabled person’s disability – Section 15(1), EQA 2010

· Right not to be discriminated against by a failure to comply with a duty to make reasonable adjustments. – Section 21, EQA 2010

· Right not to be harassed by unwanted conduct related to age, disability, gender reassignment, race, religion or belief, sex or sexual orientation. -Section 26(1), EQA 2010

· Right not to be sexually harassed – Section 26(2), EQA 2010

· Right not to be victimised because of a protected act – Section 27, EQA 2010

· Right as a part-time worker not to be treated less favourably than a comparable full-time worker

· Right as a fixed-term employee not to be treated less favourably than a comparable permanent employee)

· Right to a sex equality clause (equal pay for equal work) – Section 66, EQA 2010

· Right to a maternity equality clause – Section 73, EQA 2010

Detriment

Statutory right

· Not to suffer detriment for exercising rights as a part-time worker

· Not to suffer detriment for exercising rights as a fixed-term employee

· Not to suffer detriment for exercising rights in respect of the Working Time Regulations 1998 – Section 45A, ERA 1996

· Not to suffer detriment for exercising rights in respect of a protected disclosure – Section 47B, ERA 1996

· Not to suffer detriment for exercising the right to be accompanied at a disciplinary or grievance hearing

· Not to suffer detriment for exercising rights in respect of health and safety cases – Section 44, ERA 1996

· Not to suffer detriment for exercising rights in respect of Sunday working – Section 45, ERA 1996

· Not to suffer detriment for exercising rights as a pension scheme trustee – Section 46, ERA 1996

· Not to suffer detriment for exercising rights in respect of acting as an employee representative – Section 47, ERA 1996

· Not to suffer detriment for exercising rights in respect of taking time off for study or training – Section 47A, ERA 1996

· Not to suffer detriment for exercising rights in respect of trade union membership- Section 146, TULRCA

· Not to suffer detriment for exercising rights in respect of family and domestic leave – Section 47C, ERA 1996

· Not to suffer detriment for requesting the right to flexible work – Section 47C, ERA 1996

· Not to suffer detriment as a result of jury service – Section 43M, ERA 1996

· Not to suffer detriment for performing functions of a representative on a European works council

· Not to suffer detriment for exercising rights in respect of the national minimum wage

· Not to suffer detriment for breaching the exclusivity term in a zero hours contract

Time off work

Statutory right

· Time off to attend antenatal appointments (paid) – Sections 55 and 56, ERA 1996

· Time off to accompany partner to antenatal appointments (unpaid) – Section 57ZE, ERA 1996

· Time off to attend adoption appointments (paid) – Sections 57ZJ and 57ZK, ERA 1996

· Time off to accompany partner to adoption appointments (unpaid)

· Time off for dependants (unpaid) – Section 57A, ERA 1996

· Time off for trade union duties (paid) – Sections 168 and 168A, TULRCA

· Time off for trade union activities (unpaid) – Section 170, TULRCA

· Time off for public duties (unpaid) – Section 50, ERA 1996

· Time off to look for work or arrange training in the event of redundancy (paid) – Section 52, ERA 1996

· Time off for pension scheme trustees (paid) – Section 58, ERA 1996

· Time off for employee representatives (paid) – Section 61, ERA 1996

· Time off for young people to undertake study or training (paid) (Wales and Scotland only) – Sections 63A-C, ERA 1996

· The right to request time off to study or undergo training (unpaid) – Section 63D, ERA 1996

· Time off for members of a national works council (paid) – Section 27, Information and Consultation of Employees Regulations 2004 (SI 2004/3426)

· Time off for members of a European works council (paid) – Regulation 25, Transnational Information and Consultation of Employees Regulations 1999 (SI 1999/3323)

Termination of employment

Statutory right

· Statutory minimum notice period – Section 86, Employment Rights Act (“ERA 1996”)

· Written statement of reasons for dismissal – Section 92, ERA 1996

· Not to be unfairly dismissed – Section 94, ERA 1996

· Statutory redundancy payment – Part XI, ERA 1996

· Collective redundancy consultation – Part XI, ERA 1996

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