You are in: Home Page | About Thompsons | Publications | Information Leaflets and Guides | Individual and Trade Union Rights - Employment Relations Act 1999 | Individual Rights

Individual Rights

Rights to be accompanied on disciplinary and grievance hearings (Sections 10-15)

In Force - 4 September 2000
Workers are given an important new right to be accompanied on disciplinary or grievance hearings. This applies to workers whose employers have disciplinary or grievance procedures which provide for a hearing: employers who do not have procedures are not compelled to adopt them. The right does not apply to employees of the security services or GCHQ.

The right is to be accompanied by a "companion" of the worker's choice who may be a colleague or a trade union official. The trade union official may either be employed by the union or be a lay official who the union has certified has experience or training in representation at disciplinary or grievance hearings.

The companion is permitted to confer with the worker during the hearing and to address the hearing (but not to answer questions on the worker's behalf). Rights of time off are given to act as a companion.

The right only applies where the worker "reasonably requests" to be accompanied. The worker is entitled to a postponement of up to five working days so that the companion can attend.

The right on grievance is confined to circumstances where the grievance concerns "the performance of a duty by the employer in relation to a worker". A disciplinary hearing is one which may lead to a warning or other sanction and is defined in such a way as to include an appeal and probably an investigatory hearing.

There is a new ACAS Code on Discipline and Grievance, revised to deal with the new provisions on the right to be accompanied.

The remedy for a breach is compensation of up to two weeks' pay. The statutory limit on the week's pay applies. Workers and those acting as companions are protected against dismissal or detriment for exercising their rights under this section. A worker who is dismissed for this reason has a right to make an emergency application to the Tribunal for interim relief. Workers cannot contract out of their right to be accompanied.

Fixed term contracts (Section 18)

In Force - 25 October 1999
Employees on fixed term contracts will no longer be able to sign away their rights to claim unfair dismissal when the term of their contract expires. If the contract expires and is not renewed they will be able to claim unfair dismissal on the same basis as other workers.
Employers can still require workers to sign away their right to receive a redundancy payment when their contract expires. However, for such an agreement to be valid, there has to be a fixed term contract for a period of two years or more.

If an employee who has a current fixed term contract is dismissed for asserting her/his rights to the national minimum wage or other statutory rights or because she is pregnant then an unfair dismissal complaint can be pursued.

Only those contracts which were signed, extended or renewed before 25 October 1999 and where the waiver was signed before that date will validly exclude unfair dismissal rights.

Extending employment rights (Section 23)

In Force - Power to make Regulations - 25 October 1999
The government has extended employment rights. The National Minimum Wage Act and the Working Time Regulations already extend to "workers", which is a broader category than employees. This broader category includes casual workers, freelancers and contract workers: indeed, all those who contract to provide their services personally unless they are doing so as a trade or profession to a customer or client. There are also specific provisions protecting agency workers and, in the case of minimum wage, homeworkers.

This progressive approach is evident in the new Act. The right to be accompanied on discipline and grievance extends to all workers (Sections 10 -15, see below) and the Government has taken the power to make regulations to extend some or all employment rights to the wider category of workers.

There is, as yet, no timetable for any regulations on this issue.

Unfair dismissal: qualifying period and compensation (Sections 33 - 37)

In Force - 25 October 1999
The government has already reduced the qualifying period for unfair dismissal protection from two years' continuous service to one year for all dismissals on or after 1 June 1999.

The proposal to remove the cap on unfair dismissal compensation has been dropped, but the maximum compensatory award has been increased from £12,000 to £50,000 for all dismissals on or after 25 October 1999. The maximum limit is removed altogether from dismissals for health and safety activities or whistleblowing.

The limits in the legislation on week's pay, basic award for unfair dismissal, guarantee payments and right to trade union membership will be automatically increased in line with inflation in future years.

The current system of additional and special awards in dismissals for trade union, health and safety, pension trustees or employee representatives dismissals is replaced with a single "additional award" of between 26 and 52 weeks' pay.

Employment outside Britain (Section 32)

In Force - 25 October 1999
Employees ordinarily working outside Britain are now covered by the laws on collective redundancy consultation and are no longer excluded from employment rights such as claiming unfair dismissal and a written statement of employment particulars.

National security (Section 41 and Schedule 8)

In Force - 16 July 2001
In a significant move, workers engaged in jobs involving national security are now covered by statutory employment rights, except rights under the whistleblowing legislation - the Public Interest Disclosure Act. Employment Tribunals are still entitled to dismiss claims for unfair dismissal or trade union victimisation where the action against the employee was taken to safeguard national security. Proceedings may be held in private.

School staff (Section 40)

In Force - 25 October 1999
The qualifying period for unfair dismissal in the School Standards and Framework Act 1998 is brought into line with the new one year period.

Transfers of undertaking (Section 38)

In Force - Power to make Regulations - 9 September 1999
The government gives itself power to go beyond the Acquired Rights Directive and provide that particular transfers or types of transfers are to be treated as covered by TUPE even where the directive would not apply.

This gives the government the power to treat particular public sector transfers as TUPE transfers and to bring forward amendments to the existing TUPE Regulations which cover situations which may not fall within the directive and thus end some of the confusion over contracting out.

This provision is already in force and has been used for at least one public sector transfer.