Automatic Unfair Dismissal

Automatic unfair dismissal refers to a situation where an employee is dismissed by their employer for reasons that are deemed automatically unfair by employment law. These reasons are outlined in legislation and include factors such as pregnancy, maternity leave, exercising certain statutory rights, or whistleblowing. The concept of automatic unfair dismissal aims to protect employees from being unfairly targeted or punished by their employers for engaging in activities that are legally protected. Examples include:

1. ERA section 100 – complaints about health and safety, refusing to work because of health and safety concerns.  No upper limit on compensation.

2. ERA section 103A – protected disclosure.  This is where an employee ‘blows the whistle’ on misconduct by others or things happening in the workplace that constitute illegality.

3. ERA section 104 – asserting a statutory right.

4. ERA section 108(4) - political opinions or affiliation. Introduced after the Redfearn v UK decision of ECtHR.  Redfearn had not been discriminated against but his Article 11 freedom of association rights had been infringed.  ECtHR did not hold that dismissal for this reason could never be justified but Redfearn had no way of challenging the dismissal because he did not have the two years’ qualifying period.  The two year period does not apply where the reason or principal reason for dismissal relates to the employee’s political opinion or affiliation.  But this is not automatic unfair dismissal.

Automatically Unfair Reasons

The employer is always likely to argue one of the five potentially fair reasons.  However, the employee may contend that his/her dismissal was actually due to another reason.  If the employee is able to successfully prove that his/her dismissal was due to one of the reasons listed below, the unfair dismissal claim will succeed at that point, and the tribunal will not consider the second limb of the unfair dismissal test, namely whether the dismissal was fair in all the circumstances. The following reasons are treated as ‘automatically unfair’:

• Relating to pregnancy or maternity

• Relating to other family friendly rights, including adoption and paternity leave

• Relating to the role of a health and safety representative

• Relating to the role of an employee representative

• Being a trade union member or taking part in trade union activities

• Asserting a right under the Working Time Regulations 1998

• Exercising the right to be accompanied to a disciplinary or grievance meeting

• Making a protected disclosure

• Asserting a statutory right

• Requesting flexible working

• Exercising rights as a fixed-term worker

• Exercising rights as an agency worker

• Relating to part-time status

• Insisting on being paid the minimum wage

• Attending jury service

• Being selected for redundancy for any of the above reasons

• Following a TUPE transfer where there is no economic, technical or organisational reason entailing a change in the workforce

• For a spent conviction or failure to disclose one

For most of the automatically unfair reasons, no period of continuous employment is required, with the exception of the last two on the list. Thus two years’ continuous employment is not required and the employer cannot justify dismissal.