Referencias
Employment Rights Act [ERA], 1996 (c. 18) as amended, consolidated version dated February 1st, 2011
Fecha:
21 Aug 1970;
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Trade Union and Labour Relations (Consolidation) Act [TULRCA],1992 (c. 52) as amended. Consolidated version dated 1st February 2010.
Fecha:
21 Aug 1970;
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Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations [FTER], 2002.
Fecha:
20 Aug 1970;
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»
Employment Tribunal Act [ETA], 1996 (c. 17) , as amended. Consolidated version dated 15 December 2007.<br/>[Note however that not all amendments are included in the electronic revised version provided below. Subsequent amendments up to SI 2010/2279 of 15 September 2010 have been reviewed by the researchers].
Fecha:
21 Aug 1970;
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Ámbito de aplicación
Tamaño de las empresas excluidas (≤): ninguna
Categorías de trabajadores excluidas: policía, ejército, gente de mar
Protection under the ERA does not extend to:
* individuals whose employment lasts for less than one month (sec 198, ERA);
* police officers (sec. 200, ERA);
* mariners (sec. 199, ERA);
* members of the naval, military and air forces of the Crown (sec. 192, ERA).
Protection against unfair dismissal, requires that one be employed for at least one year (sec. 108, ERA). Everyone, however, is protected against dismissal based on the exercise of statutory and workplace rights, personal reasons, union membership, civic duty, sex and racial discrimination
CDD regulados: Si
FTCs are regulated by the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 [FTER].
Razones de utilización legítima de CDD: sin restricción
Número máximo de CDD consecutivos: sin restricción
The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 [FTER], with effect from 1st October 2002 stipulate that a fixed-term employee shall become a permanent employee after four years of continuous employment under one or successive fixed-term contracts (reg. 8 (2) a)).
However, this statutory four-year limit does not apply if employment on a fixed-term contract can be justified on objective grounds, or if the period of four years has been lengthened under a collective or workplace agreement (reg. 8 (2) b) and 8 (5) FTER).
Duración máxima acumulativa de CDD consecutivos: 4año(s)
The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 [FTER], with effect from 1st October 2002 stipulate that a fixed-term employee shall become a permanent employee after four years of continuous employment under one or successive fixed-term contracts (reg. 8 (2) a)).
However, this statutory four-year limit does not apply if employment on a fixed-term contract can be justified on objective grounds, or if the period of four years has been lengthened under a collective or workplace agreement (reg. 8 (2) b) and 8 (5) FTER).
% de trabajadores bajo CDD: 6.2
Source: Eurostat, annual average for 2011.
The figure refers to the percentage of employee with a contract of limited duration (= temporary job) of total number of employee aged 15-74 years.
Eurostat data are based on the following definition:
"A job may be considered temporary if employer and employee agree that its end is determined by objective conditions such as a specific date, the completion of a task or the return of another employee who has been temporarily replaced (usually stated in a work contract of limited duration). Typical cases are: (a) persons with seasonal employment; (b) persons engaged by an agency or employment exchange and hired to a third party to perform a specific task (unless there is a written work contract of unlimited duration); (c) persons with specific training contracts."
Duración maxima del periodo de prueba (en meses): 12 mes(es)
The ERA does not regulate the probationary period as such. However, it provides for a "qualifying period of employment" which is comparable to the probationary period insofar as employees are excluded from the protection against unfair dismissal during that period of time (sec. 108) ERA. The qualifying period of employment is one year.
Obligación de motivar el despido: Si
Motivos autorizados (despido justificado):
Motivos prohibidos: embarazo, licencia de maternidad, presentación de una queja contra el empleador, raza, sexo, orientación sexual, religión, afiliación sindical y actividades sindicales, discapacidad, licencia paternal, denuncia/ alerta, licencia de adopción, formulación de inquietudes relativas a la seguridad y la salud en el trabajo, prestar servicio como jurado, antecedentes judiciales o no revelación de aquéllos, origen étnico
A dismissal is also automatically unfair if the principal reason for it involves:
* leave for family reasons (includes pregnancy, maternity/paternity/adoption/parental leave): sec. 99 ERA;
* employee representatives: sec. 103 ERA, trade union membership and activities and refusal to belong to a trade union: sec. 152 (1) of the Trade Union and Labour Relations (Consolidation) Act (TULRCA);
* bringing proceedings against the employer to enforce a statutory right: sec. 104 ERA; (see also 104A to 104D ERA: enforcement of a right related to national minimum wage, flexible hours, tax credit and pension enrolment)
* race, ethnic or national origin: Sec 4 (2) b and 4 (4A) of the Race Relations Act 1976 (c. 74) as subsequently amended;
* sex: sec. 6 (2) of the Sex Discrimination Act 1975 (c. 65), as subsequently amended;
* disability: sec. 4 (2) b) of the Disability Discrimination Act 1995 8c. 50) as subsequently amended.
* age: sec. 7 (2) d) of the The Employment Equality (Age) Regulations 2006 (No. 1031), as amended;
* religion and belief: sec. 6 (2) d) of the Employment Equality (Religion or Belief) Regulations 2003 (No. 1660), as amended;
* sexual orientation: sec. 6 2) d) of the The Employment Equality (Sexual Orientation) Regulations 2003 (No. 1661), as amended;
* safety representatives raising health and safety concerns: sec. 100, ERA;
* jury service: sec. 98B ERA;
* New in 2010: a prohibited blacklist of trade union members in certain circumstances (sec. 104E ERA, as inserted by Regulation 12 of the Employment Relations Act 1999 (Blacklists) Regulations 2010.
In addition, a dismissal is also automatically unfair if the principal reason for it involves:
- unfair selection for redundancy (sec. 105 ERA), transfer of an undertaking (sec. 7(1), Transfer of Undertakings (Protection of Employment) Regulations, 2006), (i.e. unless the dismissal is justified by an economic, technical or organizational reason entailing a change in the workforce), conviction of an offence or failure to disclose such a conviction when the conviction is 'spent' within the meaning of the Rehabilitation of Offenders Act 1974 (sec. 4(3)(b));
- industrial pressure exercised on the employer (e.g. if employees threaten to start industrial action unless a certain employee is not dismissed) (sec. 107, ERA);
- shop workers and betting workers who refuse Sunday work (sec. 101, ERA); and
- trustees of occupational pension schemes (sec. 102, ERA).
Trabajadores que gozan de una protección particular (fuero):
No additional protection for specific category of workers besides the prohibition of dismissals based on the above-mentioned reasons.
Forma de la notificación del despido al trabajador: sin forma particular exigida
No specific form required for dismissal notification.
The ERA only provides for the right to a written statement of the reasons for dismissal upon request (sec. 92).
Plazo de preaviso:
Sec. 86 ERA establishes minimum notice periods according to the length of service, as follows:
- one week, if the employee has been continuously employed for at least 1 month but less than two years;
- one week for each year of continuous employment if the period of continuous employment is between two and 12 years; and
- 12 weeks if the period of continuous employment is 12 years or more.
No notice needs to be given if the employee has been employed for less than 1 month.
Indemnización sustitutiva de preaviso: No
There is no statutory right to pay in lieu of notice. However, a pay in lieu of notice clause can be inserted in the employment contract or it may be paid to cover any potential damages for breach of contract
See also sec. 88 (1) a) ERA that provides that "If an employee has normal working hours under the contract of employment in force during the period of notice and during any part of those normal working hours the employee is ready and willing to work but no work is provided for him by his employer (...) the employer is liable to pay the employee for the part of normal working hours a sum not less than the amount of remuneration for that part of normal working hours calculated at the average hourly rate of remuneration produced by dividing a week's pay by the number of normal working hours."
Notificación a la administración: No
Notificación a los representantes de los trabajadores: No
Aprobación de la administración publica o de organismos judiciales: No
Acuerdo de los representantes de los trabajadores: No
Definición de despido colectivo (número de empleados afectados) Redundancies concerning at least 20 employees within 90 days.
- Duties of consultation and notification arise where an employer is proposing to dismiss 20 or more employees within a period of 90 days or less (Sec. 188(1) and 193(1) TULRCA)
- Definition of redundancy: sec. 195 TULRCA: "references to dismissal as redundant are references to dismissal for a reason not related to the individual concerned or for a number of reasons all of which are not so related".
Notificación a la administración Yes
Sec. 188 TULRCA. The consultation shall start at least 30 days before the dismissals takes effect, where the employer is proposing to dismiss 20-99 employees and, at least 90 days before the first dismissal, where the employer intends to dismiss at least 100 employees.
Notificación a los sindicatos (representantes de los trabajadores) Yes
Sec. 193 TULRCA: Compulsory written notification to the Secretary of State at least:
- 30 days before the first dismissal takes effect where the employer is proposing to dismiss as redundant 20-99 employees and,
- 90 days before the first dismissal takes effect where the employer is proposing to dismiss as redundant 100 or more employees at one establishment within a period of 90 days o dismiss as redundant.
In practice the employer shall notify the Department for Business, Innovation & Skills.
Notificación a los representantes de los trabajadores: Yes
Sec. 188 TULRCA.
Acuerdo de los sindicatos (representantes de los trabajadores) No
Acuerdo de los representantes de los trabajadores No
Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio) No
No statutory rules on selection criteria.
Sec. 188 (4) d) TULRCA only refers to "method of selecting the employees" as one the elements to be disclosed to the appropriate representatives for the purposes of the consultation.
Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...) No
Reglas de prioridad para la re-contratación Yes
See sec. 188 (2) TULRCA: " The consultation shall include consultation about ways of:
(a) avoiding the dismissals,
(b) reducing the numbers of employees to be dismissed, and
(c) mitigating the consequences of the dismissals, and shall be undertaken by the employer with a view to reaching agreement with the appropriate representatives".
mineros: No
directores/ gerentes: Si
Sec. 112, 111, 114, 115 ERA: If the Employment Tribunal is satisfied that the dismissal is unfair, it shall first consider to issue an order of reinstatement or re-engagement. However, if no such order is made (i.e because the employee does not wish to be reinstated or it is not practicable for the employer), the tribunal shall make an award of compensation for unfair dismissal.
In practice, reinstatement or re-engagement is rarely ordered. According to the latest statistics of the Employment Tribunal (April 2010 - March 2011), in only 0.19 % of all cases of unfair dismissals upheld (excluding dismissed cases) were reinstatement or re-engagement orders issued.
policía: No
Sec. 18 (3) Employment Tribunal Act as last amended by Employment Act 2008, sec. 5.
Preliminary conciliation can take place before the Advisory, Conciliation and Arbitration Service (ACAS) where both parties have made the request, or if only one party has made the request. The ACAS conciliation officer has now a discretionary power to conciliate in a pre-tribunal dispute without having to justify the reasons for his decision whether or not to offer conciliation.
Sec. 111 ERA: The Employment Tribunal Act has jurisdiction over complaints of unfair dismissal. See also Employment Tribunal Ac, 1996, as last amended by Employment Act 2008.
Alternatively employees may also sue employers for breach of contract/wrongful dismissal in civil courts. However civil courts do not have jurisdiction over claims of unfair dismissal as defined by the ERA.
Arbitraje: Si
Voluntary arbitration scheme for unfair dismissal claims through ACAS (Advisory, Conciliation and Arbitration Service).