When does a dismissal become automatically unfair? | LabourBlawg

When does a dismissal become automatically unfair?

by Tom Street on July 30, 2013

To bring an unfair dismissal claim against their former employer, an individual must:

  • actually be an employee (as opposed to “worker”);
  • have been dismissed (as defined by s.95 of the Employment Rights Act 1996);
  • if hired before 6 April 2012 have 1 year’s continuous service;
  • if hired on or after 6 April 2012 have 2 year’s continuous service;
  • not be classed as an “excluded” employee, for example certain Crown employees cannot bring such a claim.

The Employment Rights Act 1996 along with other legislation affords employees a greater degree of protection under certain circumstances. This allows employees to claim “automatic” unfair dismissal, as opposed to having to prove in a tribunal that the dismissal was unjust. The list of circumstances in which unfair dismissal becomes automatic is extensive, and laid out in statute. If an employee can show that one of these following circumstances was the reason or principal reason for the dismissal, no further investigation is required. The question of “reasonableness”, often a consideration for employment tribunals, does not apply. Some of the principal areas which may afford employees automatic unfair dismissal rights include:

  • taking or asking to take leave for family reasons; this may include maternity, pregnancy, paternity, adoption, parental and childbirth;
  • taking leave to care for dependants or for a genuine family emergency;
  • carrying out certain health and safety activities;
  • executing certain working time activities;
  • whistleblowing, or making a protected disclosure against the employer;
  • performing functions as a trustee of an occupational pension scheme;
  • refusal to work on Sunday by retail employees;
  • asserting rights under the National Minimum Wage regulations;
  • seeking to exercise the right to flexible working;
  • taking part in “protected” industrial or strike action
  • asserting rights under the Part-Time Workers Regulations
  • asserting the right to be accompanied in grievance or disciplinary hearings
  • attending jury service

Due to the severity of the above reasons for dismissal there is no qualifying period as with a “standard” claim (2 years service after 6 April 2012). Theoretically, an employee could have been employed for just a couple of weeks, and if they were subsequently dismissed for one of the above reasons they may have a claim for automatic unfair dismissal. There is a “B List” of reasons which may give rise to an automatic unfair dismissal claim, but where the qualifying period of service does apply, and these include:

  • reasons relating to retirement which are in breach of Schedule 6 of the Employment Equality (Age) Regulations 2006
  • where the only or main reason for dismissal was a TUPE transfer
  • for having a spent criminal conviction.

Examples of automatically unfair dismissals

Typical examples of where an employer may fall foul of an automatic dismissal claim might be:

An employee has child care issues and knows she is going to have to take time off work over the next few weeks. Her employer, a small business, sees this as likely to have a detrimental effect on his business and decides to sack her and employ someone else. In this case the employee may have a claim for automatic unfair dismissal, as the principal reason for her sacking was related to caring for dependants.

An employed cleaner refuses to work in certain areas of a factory because of unstable machinery or bare electrical wires. His employer insists he cleans in those areas, and when he refuses the employee is dismissed. Again, this is a situation where a tribunal might consider he has been automatically unfairly dismissed as the employee was protecting his personal well-being and making the employer aware of health and safety issues.

Do I Have A Case? can offer no win no fee employment advice to anyone who thinks they have suffered an automatic unfair dismissal.

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