This page can be viewed with a Silver Library Subscription. For £9.99 you can access the information and guidance here for 3 months. Simply log in if you already have a subscription to this page.
You are protected from unfair dismissal by the Employment Rights Act 1996 (ERA 1996), but you need two years continuous service to make an unfair dismissal claim in the Employment Tribunal. This page lists all the other employment rights for which you can make a claim even if you don’t have two years service.
If you are dismissed for a reason related to your statutory rights, it is an automatically unfair dismissal. In the majority of automatically unfair dismissal cases, you will be able to sue for unfair dismissal even if you don’t have the two years qualifying service (Section 108 ERA 1996, Sections 154 & 239 Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992), paragraph 164; Schedule A1 TULRCA 1992, and Section 12(4) Employment Relations Act 1999).
The only exceptions are in dismissals because of a spent conviction, and dismissals where there is a transfer of an undertaking (TUPE 2006) which require two years’ service if you started working on or after 6th April 2012.
If the Employment Tribunal finds that you were dismissed for any of the automatically unfair reasons the ET must rule in your favour and find the dismissal unfair.
In “normal” unfair dismissal proceedings, the ET will consider whether you were dismissed for a potentially fair reason. Potentially fair reasons for dismissal are listed in section 98 ERA 1996. These are;
The ET would then go on to assess whether your employer acted reasonably within the meaning of section 98 (4) -(6) ERA 1996.
In a “normal” unfair dismissal case, it is your employer’s responsibility to show that your dismissal was for a potentially fair reason, and that they acted reasonably in coming to that conclusion.Unfair Dismissal
This does not apply in an automatically unfair dismissal. Automatically unfair dismissal cases are brought either under section 104 ERA 1996 (for statutory rights given under the ERA 1996), or under the specific piece of legislation which gives you that right. For example, you have the right not to be discriminated against under the Equality Act 2010. You do not need two years’ service to make a claim for discrimination. You would sue for discrimination under the Equality Act 2010, not ERA 1996.
If you are alleging that your employer has breached a statutory right given by the ERA 1996, you should bring your claim for automatically unfair dismissal either under section 104(1)(a) and/or 104(1)(b) ERA 1996. You must show the ET that;
If you are successful, the ET will decide in your favour and you will be entitled to compensation.Unfair Dismissal
The ET’s job is to determine whether you were dismissed for asserting a statutory right under section 104 ERA 1996 as follows;
To claim under section 104(1)(a), you should have started proceedings in the Employment Tribunal against your employer. To claim under section 104(1)(b), you should have raised a formal grievance or made some other form of complaint about a breach of your statutory rights. It is only after you have proved this, that the Employment Tribunal will be able to proceed with your automatically unfair dismissal claim (Smith v Hayle Town Council  IRLR 413, ICR 996)
Interim relief is an emergency procedure used to help you keep your job pending the hearing of your unfair dismissal claim. Under sections 128–132 of the Employment Rights Act 1996, you can apply for interim relief where you are claiming that you have been dismissed for any of the automatically unfair reasons listed there. You must make your application within 7 days of your dismissal. Applying for interim relief means that you don’t have to go through ACAS Early Conciliation – Regulation 3 (1) Employment Tribunal (Early Conciliation: Exemption and Rules of Procedure) Regulations 2014.
If your application for interim relief is successful, the Employment Tribunal can order that you should be reinstated or re-engaged, or that your employment contract should continue until the final hearing of your substantive claim.
Unlike ordinary unfair dismissal, there is no statutory limit (cap) on the amount of compensation you can be awarded for an automatically unfair dismissal.
A dismissal falling into any of the following categories will be automatically unfair. In the first list, you don’t need two years’ service to bring a claim, and in the second list you do.
Section 101(b) ERA 1996 (which has not yet been brought into force by an Act of Parliament), makes the dismissal of an employee under the age of 18 for exercising, or seeking to exercise, rights to participate in education or training an automatically unfair dismissal.
In the following list you do not need two years’ service to claim automatically unfair dismissal where;
You have asserted a statutory right, whether by bringing proceedings to enforce that right or alleging that your employer has infringed that right.
You have made a protected disclosure within the meaning of the whistleblowing provisions.
You have been dismissed because of a right concerning the right to be accompanied at disciplinary or grievance meetings.
You have been made redundant and regulation 10 of the Maternity Leave Regulations has not been complied with (except where it ends ordinary or additional maternity leave)
Section 99 Employment Rights Act 1996, Regulation 20 Maternity and Parental Leave etc. Regulations 1999, Regulations 28 & 29 Paternity and Adoption Leave Regulations 2002, and Regulation 34 Additional Paternity Leave Regulations 2010
For family-related reasons including;
You were dismissed for claiming your right to flexible working provisions.
You were dismissed for asserting your rights as a part-time employee
You were dismissed for asserting your rights as a fixed-term employee.
Section 99 Employment Rights Act 1996, Regulations 19 & 20 Maternity and Parental Leave etc. Regulations 1999
You were dismissed because you would not sign a relevant workforce agreement or you were an employee representative, or a candidate to be an employee representative.
You were dismissed for performing functions as an information and consultation representative, or a European Works Council representative, or dismissed for being a candidate to be an employee representative, where there was a collective redundancy, transfer of undertakings or statutory information and consultation matters, or you were dismissed for exercising the specific rights listed in the Transnational Information and Consultation of Employees Regulations 1999 (TICER) – s103 Employment Rights Act 1996, Regulation 28 Transnational Information and Consultation of Employees Regulations 1999, Regulation 42 European Public Limited-Liability Company Regulations 2004, Regulation 30 Information and Consultation of Employees Regulations 2004.
You were dismissed because of trade union membership or activities.
You were dismissed for a reason related to trade union recognition or bargaining activities.
You are a shop or betting worker who is dismissed for refusing to work on Sundays.
You were dismissed for claiming your right to tax credits.
You were dismissed for performing functions as the trustee of an occupational pension scheme.
You were dismissed for a reason related to duties as an employee representative, or a candidate to be an employee representative for an occupational or personal pension scheme.
You were dismissed for asserting the right to attend study or training, or exercised (or proposed to exercise) your rights under the Employee Study and Training (Procedural Requirements) Regulations 2010, or brought tribunal proceedings in relation to an alleged breach of the right to study and training, or alleged that circumstances existed which would constitute a ground for bringing such proceedings.
You were dismissed for refusing to become an employee shareholder.
You were selected for redundancy for an automatically unfair reason.
You were summoned for jury service or absent from work while on jury service.
You were dismissed for political beliefs or affiliations (applies to dismissals on or after 25 June 2013).
Your dismissal is connected to asserting your rights under the Agency Workers regulations.
You were dismissed because you worked for another employer whilst under a zero hours contract
You were dismissed because of your membership of a reserve force, or the dismissal is connected to that membership of a reserve force.
Any of the rights conferred by the Merchant Shipping (Hours of Work) Regulations 2002 SI 2002/2125; the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003 SI 2003/3049; the Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004 SI 2004/1713; or the Crossborder Railway Services (Working Time) Regulations 2008 SI 2008/1660
You were dismissed either before or after transfer for a reason that is not an economic, technical or organisational reason.
You were dismissed for not declaring a spent conviction under the Rehabilitation of Offenders Act 1974.
The information and content on this website is provided for general information purposes only and is not intended to constitute legal or other professional advice. Legal information or content on this website relates only to the laws of England and Wales. You should not take any actions based on information found on this website without first seeking appropriate legal advice with respect to your specific matter. No representations or warranties are made about the suitability, currentness, comprehensiveness and/or accuracy of the information and other content contained on this website. It should be noted that legal information and content can rapidly become out of date and we give no undertaking to keep this website up to date. All liability for any loss or damage of any kind which may be suffered as a result of accessing and using the information and/or content of this website is hereby excluded to the full extent permitted by law.