Automatically Unfair Dismissal

Automatically unfair reasons for dismissal

Whilst 12 months service, or perhaps 24 months as it may be soon, is normally required before an Employment Tribunal will hold the dismissal of an employee to be unfair, there are a number of dismissal situations that would be deemed as automatically unfair regardless of length of service.

So if an employee with any length of service is dismissed or selected for redundancy for any of the following it will be automatically unfair:

Pregnancy and Parenting

• for any reason that relates to pregnancy, childbirth or maternity
• for taking, or asking to take, ordinary, compulsory or additional maternity/ paternity leave
• for taking, or asking to take, ordinary or additional adoption leave
• for taking, or asking to take, parental leave
• for taking, or asking to take, time off for dependants

Jury Service
for reasons relating to jury service unless the employer told the employee that the absence was likely to cause serious damage to the business and the employee refused to apply for an excusal.

Trade Unions and Representation of Employees

• trade union membership, non-membership, taking part in trade union activities or using services provided by a trade union
• for refusing to accept an employer’s offer of an unlawful inducement to join a trade union, to give up their trade union rights or to disapply a collective agreement
• for refusing to make a payment in lieu of union membership, or objected to having a deduction made from their pay by their for exercising or seeking to exercise rights relating to trade union recognition procedures
• for taking lawfully organised official industrial action lasting 12 weeks or less (or more than 12 weeks in certain circumstances). N.B. this does not cover unofficial action
• inclusion on a ‘prohibited list’, i.e. a blacklist of individuals who have trade union affiliations
• for using or seeking to use their right to be accompanied at a disciplinary or grievance hearing, or to accompany a fellow worker at this type of meeting
• seeking election as an employee representative or undertaking the role
• for exercising or asking to exercise the right to be accompanied, or to accompany a fellow employee at a meeting to consider a request not to retire (this will be otiose when the law changes abolishing the compulsory retirement age)

Sunday Trading
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

Minimum Wage and Working Hours

• for reasons relating to the Working Time Regulations 1998
• for reasons relating to the national minimum wage
• for requesting flexible working arrangements

Company Pension Administration

• for performing, or proposing to perform, any duties relevant to their role as an occupational pension scheme trustee
• for reasons relating to changes in pension schemes under the Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006

Training and Health & Safety

• for taking, specified types of action on health and safety grounds e.g. refusing to work in a place of danger
• for reasons relating to them making a request for time to study or train

Whistle-blowers
for making a protected disclosure. N.B. this only applies to qualified disclosures that relate to criminal matters, miscarriage of justice, health and safety breaches or failure of the employer to comply with other ‘legal obligations’.

Fixed Term & Part Time Contracts

• for reasons relating to the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. If you have been working on fixed term contracts and you have been exercising your rights under this provision
• for exercising rights in relation to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. This provides for equal rates of pay, benefits, training etc. for part-time workers

Miscellaneous Rights for employees of multi-national companies

• for exercising rights under the Transnational Information and Consultation of Employees Regulations 1999. This applies to involvement with a European Works Council for multinational companies operating in two EEA countries
• for asserting employee participation rights for multi-national SE companies under the European Public Limited-Liability Company Regulations 2004
• for reasons relating to the new rights to be informed and consulted on an on-going basis about developments in the organisations they work for under the Information and Consultation of Employees Regulations 2004
• for exercising rights in relation to employee involvement in a cross border European Co-operative under the European Cooperative Society (Involvement of Employees) Regulations 2006
• for exercising rights in relation to employee participation under the Companies (Cross-Border Mergers) Regulations 2007
• for exercising rights in relation to employee involvement under the European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009

This is not an exhaustive list and it does not include rights that accrue after a minimum period of employment. it is also worth noting that Eu directives add to this list on a regular basis or have done in recent years.