Discrimination and Rights to Tribunal Claims

Under normal circumstances, an employee must have two years' continuous employment in order to be able to make a claim in an employment tribunal for unfair dismissal.

However, if the dismissal was due to trade union membership or activities, health and safety related or due to the employee (or being a candidate for) acting as an employee representative or for asserting a statutory right or was maternity related, the employee can still claim for unfair dismissal even if they have not satisfied the qualifying period.

There are other circumstances in which a dismissal will be deemed automatically unfair. These include:

• a dismissal in connection with an employee's refusal to comply with a requirement of the employer in contravention of the Working Time Regulations 1998
• a refusal to forego a right under those Regulations;
• a dismissal in connection with a transfer of an undertaking: You should always send a Notification of Business Transfer letter to all employees;
• or because an employee made a protected disclosure under the Employment Relations Act 1999.

Any dismissal based on protected grounds will be considered discriminatory and a claim can be brought in an employment tribunal, regardless of length of employment.

Extreme caution should be exercised when any potentially discriminatory circumstances or factors may be alleged or are present. It should also be noted that there is no limit on compensation levels for such discrimination claims.