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Who has the right to claim?

Most employees have the right to complain of unfair dismissal to an Employment Tribunal but there are certain exceptions.

A complaint to an Employment Tribunal must be made by the individual who was dismissed, but if the employee dies a personal representative of the deceased can make the application to the Tribunal or continue proceedings already started. An 'employee' is an individual who has entered into, works or worked under a contract of employment.

A contract of employment is a contract of service or apprenticeship. Its terms may be expressed in writing or orally, or may be implied.

Who does not have the right to claim unfair dismissal?

The following people cannot normally complain of unfair dismissal:

  • Those who are not employees (for example an independent contractor or free-lance agent).

  • If you commenced continuous full time employment with your employer before 6 April 2012 the qualifying period to bring a claim for unfair dismissal is 1 year (the 12 month rule), if however you commenced continuous employment with your employer on or after 6 April 2012, then the qualifying period is 2 years.

  • Certain employees with fixed term contracts for one year or more where the dismissal consists only of the expiry of the contract without renewal and the employee has previously agreed in writing to forgo his or her right of complaint in such circumstances. Any such agreements must have been made before 25 October 1999 . Since that date, employees working under fixed term contracts cannot agree to waive their right to complain of unfair dismissal;

  • Employees who have reached a settlement with their employer, either with ACAS conciliation or on the basis of a 'compromise agreement', reached with the benefit of independent advice, in which they have waived their right to make a complaint in relation to the dispute to which the settlement relates.

  • Members of the police service (except in relation to dismissal for taking action on health and safety grounds and for making a public interest disclosure) and armed forces; masters and crew members engaged in share fishing who are paid solely by a share in the profits or gross earnings of a fishing vessel.

  • Employees covered by a dismissal procedures agreement which has been exempted from the unfair dismissal provisions by an Order made by the Secretary of State for Employment.4