regardless of service or hours worked. There are excep-
tions in the case, for example, of maternity dismissals,
health and safety dismissals and dismissals for assert-
ing statutory rights, e.g. asking for written particulars.
These dismissals are automatically unfair and are not
service-based.
Persons who ordinarily worked outside Great Britain
were formerly excluded. However, s 32(3) of the Employ-
ment Relations Act 1999 repealed the relevant provision
of the Employment Rights Act 1996, but unfortunately
put nothing in its place. The position now is that if the
worker’s contract is for work in the UK but the worker
is posted abroad, UK remedies apply, but where the con-
tract is for work abroad, UK remedies may not apply.
However, in Lawsonv Serco(2006) the House of Lords
ruled that the claimant, who was employed to work on
Ascension Island as distinct from being posted there,
could pursue a claim for unfair dismissal under UK
employment law. Mr Lawson was a civilian working at a
UK airforce base which was described by the House of
Lords as sufficient of a UK enclave to allow the claim.
Certain other categories are excluded by the ERA, e.g.
members of the police force and those taking unofficial
industrial action. The Employment Relations Act 1999
provides that a worker who is dismissed by reason of
taking official and legal industrial action will be able to
claim unfair dismissal, provided that the dismissal takes
place within the first 12 weeks of the action beginning
with the day on which the employee took part in indus-
trial action. Thus, in a long period of official industrial
action, these rules of dismissal protection would not apply.
Members of the armed forces are now covered by the
unfair dismissal provisions of the ERA, provided that
they have first availed themselves of services redress pro-
cedures (ERA 1996, s 192).
It should also be noted that s 9 of the Employment
Tribunals Act 1996 contains provisions to test the
strength of the case of each party before a full hearing
proceeds. Pre-hearing reviews are introduced at which
the chairman of the tribunal may sit alone without the
two lay assessors. The chairman may, at his discretion
and following an application by one of the parties, or
of his own motion, require a deposit of up to £500 from
the other party as a condition of proceeding further if
it is considered that his or her case has no reasonable
prospect of success, or that to pursue it would be frivol-
ous, vexatious or otherwise unreasonable. Chairmen of
employment tribunals have been referred to as ‘judges’
since 1 December 2007.Part 4Business resources
540
Termination of the contract
of employmentUnfair dismissal – generally
Before a person can ask an employment tribunal to con-
sider a claim that another has unfairly dismissed him
or her it is once again essential to establish that the rela-
tionship of employer and employee exists between them.
In this connection the ERA provides that an employee
is a person who works under a contract of service or
apprenticeship, written or oral, express or implied.
An example of a case where a person failed in an
unfair dismissal claim because he was unable to show
that he was an employee is given below.
Masseyv Crown Life Insurance Co(1978)Mr Massey was employed by Crown Life as the manager
of their Ilford branch from 1971 to 1973, the company
paying him wages and deducting tax. In 1973, on the
advice of his accountant, Mr Massey registered a busi-
ness name of J R Massey and Associates and with that
new name entered into an agreement with Crown Life
under which he carried out the same duties as before
but as a self-employed person. The Inland Revenue
were content that he should change to be taxed under
Schedule D as a self-employed person. His employment
was terminated and he claimed to have been unfairly
dismissed. The Court of Appeal decided that being self-
employed he could not be unfairly dismissed.Unfair dismissal – excluded categories
Employees above retiring age were excluded but are no
longer by reason of the Employment Equality (Age)
Regulations 2006. Examples of excluded categories
include: dismissal in circumstances in which the em-
ployee failed to make use of the statutory grievance pro-
cedure; and dismissals where the employee has entered
into a valid compromise agreement.
As regards the period of employment, the general
unfair dismissal provisions do not apply to the dismissal
of an employee from any employment if the employee,
whether full-time or part-time, has not completed one
year’s continuous employment ending with the effective
date of termination of employment unless the dismissal
is automatically unfair. Such dismissals are actionable