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.
29 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:
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
because the employee participated in official industrial action in certain circumstances
as a result of pressure from a trade union, by way of the threat of industrial action
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
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
a pregnancy or maternity-related reason
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
for a reason connected with the employee’s assertion of their rights under the national minimum wage (NMW) legislation
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
a reason connected with the performance by the employee who is a pension scheme trustee of their functions as such a trustee
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
a reason connected with the refusal of Sunday work by a shop worker or betting worker
a reason connected with the employee making a whistleblowing protected disclosure under the Public Interest Disclosure Act 1998
a reason connected with trade union recognition or bargaining arrangements
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
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
because the employee made, or proposed to make, an application to work flexibly under the statutory right to request flexible working arrangements
because the employee took, or proposed to take, action with a view to enforcing or securing the benefit of working tax credit
because the part-time employee exercised, or sought to exercise, their rights under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000
because the fixed-term employee exercised, or sought to exercise, their rights under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002
as a result of the employee being summoned for, or being absent from work to attend, jury service, in certain circumstances
because the employee exercised, or sought to exercise, their statutory right to paid time off for study or training, where it applies
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
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
because the employee refused to accept an offer by their employer for them to become an employee shareholder
because the employee exercised, or sought to exercise, their statutory right to time off to accompany a pregnant woman to an antenatal appointment
because the employee exercised, or sought to exercise, their statutory right to time off to attend an adoption appointment
because the zero-hours employee breached an unenforceable exclusivity clause in their zero-hours contract
a selection for redundancy for a reason which would have been automatically unfair if it had been the reason for dismissal.
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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