7 Health and safety dismissals and detriments.Desig-
nated or acknowledged health and safety representatives
must not be subjected to detriments, for example loss of
overtime, for carrying out health and safety activities in
the workplace. Dismissal for these reasons is automatic-
ally unfair, which means that there is no service require-
ment. These provisions also apply to ordinary employees,
regardless of service, who leave or refuse to return to the
workplace because of a health hazard reasonably thought
to exist. The same is true under the Health and Safety
(Consultation with Employees) Regulations 1996 (SI 1996/
1513) where the dismissal is of a worker safety repres-
entative elected to take part in the health and safety con-
sultation process where there is no recognised union.
8 Dismissal for asserting statutory right.This protects
employees regardless of service against dismissal for
trying to enforce employment rights under the EPA that
can be brought before a tribunal. Dismissal will be unfair
even if the worker does not in fact have the right pro-
vided he has acted in good faith.
9 Dismissal for performing the duties of a member-
nominated trustee of an occupational pension scheme.
10 Dismissal for performing the duties of an employee
representative in redundancy consultation or putting
up for election to be one.
Automatically unfair dismissals
Having noted some of these in various parts of the text,
it may be useful to bring them together in a list, remem-
bering that dismissals of this kind do not require any
particular period of service with the employer.
The reasons which make a dismissal automatically
unfair can briefly be listed as follows:
■trade union membership or activities;
■not belonging to a trade union or particular union;
■pregnancy and dismissals in connection with parental
and adoption and paternity leave;
■selection for redundancy on any of the above grounds;
■the transfer of the undertaking or a reason connected
with it (unless there is an ETO: economic, technical
or organisational reason) (it should, however, be noted
at this point that the one-year qualifying period does
not apply where the complaint is based on dismissal
for one of the automatically unfair reasons, though if
the dismissal related to the transfer of an undertaking
the one-year qualifying period does apply);
■asserting a statutory employment right under the ERA
1996, s 104;
■in health and safety cases involving union safety
representatives and now including being an employee
safety representative or putting up for election to be
one;
■performing the duties of a member-nominated trustee
under the Pensions Act 1995;
■being an employee representative in redundancy con-
sultation or putting up for election to be one (ERA
1996, s 103);
■refusing (in certain circumstances) to do shop or bet-
ting work on a Sunday;
■exercising rights under the Working Time Regula-
tions including rights as an employee representative
in connection with the workforce agreements (s 101A,
ERA 1996, as inserted by the regulations);
■asserting rights under the National Minimum Wage
Act 1998 (s 104A, ERA 1996, as inserted by the NMWA
1998);
■asserting rights to time off for study and training under
s 63A of the ERA 1996, as inserted by the Teaching
and Higher Education Act 1998;
■dismissals of employees because they exercised or tried
to exercise the right to be accompanied at a disciplin-
ary and grievance hearing or because they accompanied
a fellow worker at such a hearing;
■whistleblowing – protection of whistleblowers is pro-
vided by the Public Interest Disclosure Act 1998.Unfair dismissal and frustration
of contract
In cases appearing before employment tribunals, there
is a certain interplay between the common law rules of
frustration of contract (see Chapter 7) and the statutory
provisions relating to unfair dismissal. At common law,
a contract of service is frustrated by incapacity, e.g. sick-
ness, if that incapacity makes the contract substantially
impossible of performance at a particularly vital time,
or by a term of imprisonment. If a contract has been
so frustrated, then a complaint of unfair dismissal is
not available because the contract has been discharged
on other grounds, i.e. by frustration. Thus termination
of a contract of service by frustration prevents a claim
for unfair dismissal.
It is, of course, necessary now in terms of sickness/
incapacity for the employer to be alert to the rules about
disability discrimination, particularly where an adjust-Part 4Business resources