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Employment Relations Act 1999

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Section 18: Agreement to exclude dismissal rights

211.Section 197(1) of the 1996 Act currently provides that workers on fixed-term contracts lasting one year or more may, by written agreement before their contract expires, waive their rights to claim unfair dismissal arising from a failure to renew the contract (dismissal for these purposes includes failure to renew the contract). This is an exception to the usual position whereby, for their own protection, employees are not able to waive statutory employment rights. Section 197(2) provides that this waiver provision does not prevent a shop or betting worker from claiming unfair dismissal rights where the reason for the dismissal is refusal to work on Sundays. Dismissal for that reason is regarded as automatically unfair under the 1996 Act. Section 18(1) repeals section 197(1) so as to remove the ability of anyone on fixed term contracts to waive unfair dismissal rights, and also repeals section 197(2), which is therefore no longer necessary.

212.Subsection (2) makes consequential amendments to provisions in the 1996 Act which deal with employees’ rights not to suffer detriment for other specified reasons for which dismissal is also regarded as automatically unfair. Like section 197(2), these provisions provide a remedy where employees are dismissed for these specified reasons but have waived their rights to claim unfair dismissal. Rather than disapplying the waiver as in section 197(2), these provisions enable workers to complain of detriment in these circumstances to an employment tribunal, although detriment otherwise does not include dismissal. Once section 197(1) is repealed, these special provisions will become unnecessary since workers will not be able to waive their right to complain of unfair dismissal, and subsection (2) repeals them.

The reasons for which dismissal is regarded as automatically unfair and to which subsection (2) applies are reasons connected with the worker’s actions in relation to health and safety (section 44); as a trustee of an occupational pension scheme (section 46); as an employee representative (section 47); in exercising the right to take time off for study or training (section 47A); or in making a protected disclosure within the meaning of the Public Interest Disclosure Act 1998 (section 47B).

213.Subsections (3), (4) and (5) make equivalent consequential amendments to similar provisions on detriment in respect of working time in section 45A of the 1996 Act, in section 23(4) of the National Minimum Wage Act 1998 and in paragraph 1 of Schedule 3 to the Tax Credits Act 1999.

214.Subsection (6) provides that unfair dismissal waivers do not deprive employees of a remedy if their fixed term contracts are not renewed on grounds of pregnancy or maternity or because they have asserted a statutory employment right. Dismissal for these reasons is regarded as automatically unfair under the 1996 Act, but employees who are dismissed for them have not previously been provided with a remedy where they are working under fixed term contracts and have agreed to waive unfair dismissal rights. It is intended that subsection (6) should come into force in advance of subsections (1) to (5). Although once subsection (1) comes into force section 197(1) of the 1996 Act will be repealed, and no employee will be able to waive unfair dismissal rights, subsection (6) will ensure that employees whose waivers were agreed before the repeal takes effect will have a remedy if they are dismissed for these reasons.

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