What is an automatically unfair dismissal?
Every employee has statutory (legal) employment rights which are listed under section 104 of the Employment Rights Act 1996 (ERA 1996) and other pieces of legislation. It is an automatically unfair dismissal if you are dismissed for asserting any of the listed statutory rights. These rights include any right given by ERA 1996 for which you can sue in an Employment Tribunal, so that any new employment right which is inserted into ERA 1996 automatically becomes a relevant statutory right in the same way as the other listed rights.
You are protected from unfair dismissal by ERA 1996, but you need to have been employed by your employer for two years before you can claim unfair dismissal. 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 (TULR( C ) A 1992), paragraph 164; Schedule A1 TULR( C ) A 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.
Disciplinary action and capability
Discrimination at work
Surviving a workplace suspension
Health and Safety Dismissal
How to fight dismissal on Probation
How to survive a criminal charge, conviction or caution at work
Social Media and Unfair Dismissal
Surviving a disciplinary investigation at work
Surviving Capability and Performance Management
The Disciplinary Hearing
DOCUMENTS, FORMS AND LETTER TEMPLATES
How the Employment Tribunal addresses automatically unfair dismissal
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;
- Lack of Capability (including ill health)
- Legal bar to you working
- Some Other Substantial Reason
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.
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;
- You asserted a statutory right under section 104
- You made the assertion in good faith
- The reason or principal reason that you were dismissed was because you made the assertion.
If you are successful, the ET will decide in your favour and you will be entitled to compensation.
The ET’s job is to determine whether you were dismissed for asserting a statutory right under section 104 ERA 1996 as follows;
- Whether you were dismissed because you brought proceedings against your employer to enforce a relevant statutory right – section 104(1)(a).
- Whether you were dismissed because you alleged that your employer had infringed your relevant statutory right – section 104(1)(b).
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.
See: Schedule of loss for Unfair Dismissal
Types of 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;
1. Asserting a Statutory Right – Section 104 Employment Rights Act 1996
You have asserted a statutory right, whether by bringing proceedings to enforce that right or alleging that your employer has infringed that right.
2. Whistleblowing – Section 103A Employment Rights Act 1996
You have made a protected disclosure within the meaning of the whistleblowing provisions.
3. The Right to be accompanied – Section 12 Employment Relations Act 1999
You have been dismissed because of a right concerning the right to be accompanied at disciplinary or grievance meetings.
4. Pregnancy, Childbirth or Maternity – Section 99 Employment Rights Act 1996 and Reg. 20 & 10 Maternity and Parental Leave etc. Regulations 1999
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)
5. Asserting Family Rights – 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;
- Taking parental leave or time off for dependants
- Taking Shared Parental Leave
- Attending an adoption appointment
6. Flexible Working Rights – Section 104(c) Employment Rights Act 1996
You were dismissed for claiming your right to flexible working provisions.
7. Part-time Employees – Regulation 7 Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000
You were dismissed for asserting your rights as a part-time employee
8. Fixed-term Employees – Regulation 6 Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002
You were dismissed for asserting your rights as a fixed-term employee.
9. Workforce Agreements – 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.
10. Employee Representatives – 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.
11. Trade Union Membership or Activities – Section 152 & s154 Trade Union and Labour Relations (Consolidation) Act 1992
You were dismissed because of trade union membership or activities.
12. Trade Union recognition or bargaining – Schedule A1, paragraph 161 Trade Union and Labour Relations (Consolidation) Act 1992
You were dismissed for a reason related to trade union recognition or bargaining activities.
13. Trade Union Blacklists – Section 104F(1) Employment Rights Act 1996 and Regulation 3 Employment Relations Act 1999 (Blacklists) Regulations 2010
- You were dismissed for a reason related to a prohibited trade union blacklist.
- Your employer unlawfully compiles, uses, sells or supplies the list.
- Your employer relies on information supplied by a person who has acted unlawfully in relation to that list.
- Your employer knows or ought to know that the information relied on is from a prohibited blacklist.
14. Health and Safety – s100 Employment Rights Act 1996
- You are carrying out health and safety duties given by your employer.
- You are doing your job as a health and safety representative or member of a safety committee.
- You took part in relevant health and safety consultation or in the election of health and safety representatives
- Where there were no health and safety representatives or safety committee you brought certain health and safety issues to the attention of your employer
- You left work or refused to return to work because of a dangerous situation.
- You took steps to protect yourself or others in a dangerous situation.
15. Sunday Working – Section 101 Employment Rights Act 1996
You are a shop or betting worker who is dismissed for refusing to work on Sundays.
16. Working Time – Section 101A Employment Rights Act 1996
- You did not comply with a directive from your employer which was in breach of working time law.
- You refused to give up a right under working time law.
- You refused to sign a relevant workforce agreement.
- You took on the role of employee representative.
- You were a candidate for the role of employee representative under working time law.
17. National Minimum Wage – Section 104A Employment Rights Act 1996
- You were dismissed for any one of a number of reasons relating to national minimum wage rights including where you took action to enforce national minimum wage rights.
- You qualify for the national minimum wage.
- Your employer was prosecuted because of action that you took to enforce your national minimum wage rights.
18. Working Tax Credits – Section 104B Employment Rights Act 1996
You were dismissed for claiming your right to tax credits.
19. Trustees of Occupational Pension Schemes – Section 102 Employment Rights Act 1996
You were dismissed for performing functions as the trustee of an occupational pension scheme.
20. Employee Representatives of Pension Schemes – Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 Schedule, Chapter 5
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.
21. Pension Enrolment – Sections 1 to 33 and 45 of the Pensions Act 2008
- You were dismissed for claiming your right to Pension enrolment provisions.
- Action was taken to enforce a requirement imposed on your employer in your favour under section 1 to 33 of the Pensions Act 2008.
- Your employer was prosecuted for an offence under section 45 of the Pensions Act 2008.
22. Study and Training – Section 104E Employment Rights Act 1996, Employee Study and Training (Procedural Requirements) Regulations 2010
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.
23. Employee Shareholders – You were dismissed for refusing to become an employee shareholder.
24. Redundancy – Section 108(3)(h) Employment Rights Act 1996
You were selected for redundancy for an automatically unfair reason.
25. Jury Service – Section 98B of the Employment Rights Act 1996
You were summoned for jury service or absent from work while on jury service.
26. Political Reasons – You were dismissed for political beliefs or affiliations (applies to dismissals on or after 25 June 2013).
27. Information, Consultation and Involvement
28. Agency Workers – Agency Workers Regulations 2010
Your dismissal is connected to asserting your rights under the Agency Workers regulations.
29. Exclusivity in zero hours contracts – Regulation 3 of the Exclusivity in Zero Hours Contracts (Redress) Regulations 2015
You were dismissed because you worked for another employer whilst under a zero hours contract
30. Reserve Forces (after 1st October 2014) – Section 108(5) Employment Rights Act 1996
You were dismissed because of your membership of a reserve force, or the dismissal is connected to that membership of a reserve force.
31. Other Rights
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
In the following categories you need two years’ service to claim automatically unfair dismissal;
1. TUPE – Regulation 7 Transfer of Undertakings (Protection of Employment) Regulations 2006
You were dismissed either before or after transfer for a reason that is not an economic, technical or organisational reason.
2. Spent Convictions – Section 4(3)(b) Rehabilitation of Offenders Act 1974
You were dismissed for not declaring a spent conviction under the Rehabilitation of Offenders Act 1974.
3. Industrial Action – Section 238A of Trade Union and Labour Relations (Consolidation)Act 1992
Your employer does not offer to re-engage you following your participation in “ protected” industrial action.
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ACAS – Fair and unfair dismissal
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This resource is published by Employee Rescue Limited. Please note that the information and any commentary on the law contained herein is provided for information purposes only. The information and commentary does not, and is not intended to, amount to legal advice. Employee Rescue accepts no responsibility for any loss occasioned to any person acting or refraining from action as a result of the material contained in this publication. Further specialist advice should be taken before relying on the contents of this publication.