- rradar
Automatically unfair dismissals
Updated: Feb 16
Dismissal is normally classed as fair if the employer can demonstrate that it has been done for one of the following five reasons:
related to the conduct of the employee;
related to the capability of the employee to do the job;
because of redundancy;
because there was a statutory duty or restriction which stopped the employee continuing in their job (for example, those working in the security industry must hold an SIA-approved qualification); or
another substantial reason of a kind which justifies the dismissal.
However, there are specific situations where a dismissal will automatically be unfair. This means that if one of the reasons listed below is the reason or principal reason for dismissal, the employer has no defence and a tribunal will have no option but to make a finding of unfair dismissal. It should also be borne in mind that in a case of automatically unfair dismissal, the employee does not need two years’ continuous service to bring a claim. A list of automatically unfair dismissal reasons follows:
because of their trade union membership, trade union non-membership, trade union activities or proposed activities, or use or proposed use of trade union services;
because they failed to accept an unlawful inducement from an employer to give up their trade union rights or to disapply a collective agreement;
because they failed to accept an offer made by an employer to induce them to become a trade union member;
because they refused to make a payment in lieu of union membership, or objected to their employer deducting a sum from their wages or salary to make such a payment;
for exercising or seeking to exercise rights relating to trade union recognition procedures;
for exercising or seeking to exercise their right to be accompanied at a disciplinary or grievance hearing, or to accompany a fellow worker at such a meeting;
for reasons relating to jury service;
on grounds relating to pregnancy, childbirth or maternity;
for taking, or seeking to take, ordinary, compulsory or additional maternity leave;
for taking, or seeking to take, ordinary or additional paternity leave;
for taking, or seeking to take, ordinary or additional adoption leave;
for taking, or seeking to take, parental leave;
for taking, or seeking to take, time off for dependants;
for taking, or proposing to take, certain specified types of action on health and safety grounds;
because, subject to certain conditions, the employee was a shop worker or a betting worker and refused to work on Sundays or gave, or proposed to give, an ‘opting-out’ notice to their employer;
for reasons relating to the Working Time Regulations 1998;
for performing, or proposing to perform, any duties relevant to their role as an occupational pension scheme trustee;
for performing, or proposing to perform, any duties relevant to their role as an employee representative or as a candidate to be such representative or as a participant in the election of such a representative;
for making a protected disclosure;
for having sought, in good faith, to assert a statutory employment protection right;
for reasons relating to the national minimum wage;
for requesting flexible working arrangements;for taking lawfully organised official industrial action lasting 12 weeks or less (or more than 12 weeks in certain circumstances);
for reasons relating to the Transnational Information and Consultation of Employees Regulations 1999;
on grounds related to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000;
on grounds relating to the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002;
for reasons relating to the European Public Limited-Liability Company Regulations 2004;
for reasons relating to the Information and Consultation of Employees Regulations 2004;
for reasons relating to the Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006;
for exercising or seeking to exercise the right to be accompanied at a meeting to consider a request not to retire, or for exercising or seeking to exercise the right to accompany a fellow employee at such a meeting;
for reasons relating to the European Cooperative Society (Involvement of Employees) Regulations 2006;
for reasons relating to the Companies (Cross-Border Mergers) Regulations 2007;
for reasons relating to them making a request for time to study or train;
for reasons relating to the European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009;
in relation to them being on a ‘prohibited list’, i.e. a blacklist of individuals who are currently or used to be trade union members or who currently or used to take part in trade union activities.
A dismissal will also be unfair where the employee was dismissed:
on grounds of retirement unless it can be objectively justified; or
on the transfer of an undertaking or part of an undertaking, and the transfer itself, or a reason connected with it, is the main reason for the dismissal. This is unless it can be established that the dismissal was for an economic, technical or organisational reason entailing changes in the workforce. In this instance, an employee will need two years’ qualifying service before bringing a tribunal claim.
It is therefore vital that an employer considers the above list before considering termination of employment, even where an employee has under two years’ service. Where it is possible that an employee may have a claim under any of the above headings, the employer will need to be satisfied that the principal reason for dismissal is for one of the fair reasons for dismissal and is not wholly or mainly by reason of the above. If it is not certain that these reasons can be satisfied, dismissal may be a bigger risk than an employer is willing to take. Since several of the reasons for automatically unfair dismissal relate to specific regulations, some of which are quite obscure, employers should ensure that they obtain legal advice at the earliest opportunity.
