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Automatically Unfair Dismissal – Know The Facts

8th Nov 2019
Employment Law, Human Resources

In most cases an employee needs to have two years’ continuous employment in order to make a claim for unfair dismissal. However, in certain cases no qualifying period of employment is necessary. Not only that, dismissals which fall within these cases are deemed to be automatically unfair and the employer will have no defence to the claim. These are therefore known as the automatically unfair reasons for dismissal.

30 reasons for automatically unfair dismissal

There is an ever-growing list of cases that fall within the automatically unfair reasons for dismissal. These are where the reason or principal reason for dismissal was:

  1. a union-related reason, for example because the employee was, or proposed to become, a member of an independent trade union, or because the employee refused to become, or to remain, a member of an independent trade union, or where the employee was dismissed for having taken, or having proposed to take, part in the activities of an independent trade union, either outside working hours or within working hours if permitted by the employer
  2. because the employee participated in official industrial action in certain circumstances
  3. as a result of pressure from a trade union, by way of the threat of industrial action
  4. for a reason related to the employer contravening the rules prohibiting the compilation, use, sale or supply of blacklists of trade union members or activists
  5. the assertion of a statutory right, for example, the employee asserted their right to receive a written statement of particulars of employment or not to have unlawful deductions made from their wages
  6. a pregnancy or maternity-related reason
  7. a health and safety-related reason, for example, where the employee carried out health and safety activities on behalf of their employer, or where they brought to the attention of their employer a concern over a risk to health and safety, or where they proposed to leave, or left, the workplace and refused to return while danger persisted, in the event that they reasonably believed their well-being was in serious and imminent danger and this could not reasonably be averted, or where, in these circumstances, they took appropriate steps to protect themselves or others from danger
  8. for a reason connected with the employee’s assertion of their rights under the national minimum wage (NMW) legislation
  9. for a reason connected with the employee’s assertion of their rights, or their refusal to forgo a right, under the Working Time Regulations 1998, for example, the right to paid annual leave or the right to refuse to work on average more than 48 hours per week
  10. a reason connected with the performance by the employee who is a pension scheme trustee of their functions as such a trustee
  11. a reason connected with the performance by an employee representative, or a candidate in an election for representatives, or of their function as such an employee representative or candidate, on a transfer of an undertaking (TUPE) or where the employer proposed to make collective redundancies
  12. a reason connected with the refusal of Sunday work by a shop worker or betting worker
  13. a reason connected with the employee making a whistleblowing protected disclosure under the Public Interest Disclosure Act 1998
  14. a reason connected with trade union recognition or bargaining arrangements
  15. because the employee exercised, or sought to exercise, their statutory right to be accompanied to a disciplinary or grievance hearing or to another meeting where the statutory right to be accompanied applies, or because the employee accompanied, or sought to accompany, another worker to such a hearing or meeting
  16. because the employee took, or sought to take, parental leave, paternity leave, adoption leave, time off to deal with family emergencies involving a dependant or shared parental leave
  17. because the employee made, or proposed to make, an application to work flexibly under the statutory right to request flexible working arrangements
  18. because the employee took, or proposed to take, action with a view to enforcing or securing the benefit of working tax credit
  19. because the part-time employee exercised, or sought to exercise, their rights under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000
  20. because the fixed-term employee exercised, or sought to exercise, their rights under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002
  21. as a result of the employee being summoned for, or being absent from work to attend, jury service, in certain circumstances
  22. because the employee exercised, or sought to exercise, their statutory right to paid time off for study or training, where it applies
  23. because the employee made, or proposed to make, an application for time off work for the purposes of study or training under the statutory right to request time to train, or they exercised a right under the time to train procedure, where it applies
  24. as a result of the employee taking action to enforce the requirements imposed on employers under the Pensions Acts 2008 and 2011 relating to the automatic enrolment of eligible workers into a qualifying workplace pension scheme
  25. because the employee exercised, or sought to exercise, their statutory right to time off to accompany a pregnant woman to an antenatal appointment
  26. because the employee exercised, or sought to exercise, their statutory right to time off to attend an adoption appointment
  27. because the zero-hours employee breached an unenforceable exclusivity clause in their zero-hours contract
  28. a selection for redundancy for a reason which would have been automatically unfair if it had been the reason for dismissal.
  29. in connection with European works council (EWC) activities
  30. in connection with exercising prescribed rights as an agency worker.

In addition, where the reason or the principal reason for the employee’s dismissal is, or relates to, their political opinions or affiliation, or is connected with the employee’s membership of the reserve forces, the employee does not need to have a qualifying period of employment in order to bring a claim for unfair dismissal. Unlike the automatically unfair reasons for dismissal listed above, a dismissal on the basis of political opinions or affiliation, or membership of the reserve forces, is not automatically unfair – rather, it simply permits an unfair dismissal claim to be heard on normal principles without the need for the employee to have a qualifying period of employment.

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