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Auto Unfair Dismissal

In addition to ordinary unfair dismissal, the Employment Rights Act 1996 and certain other pieces of legislation protect employees from ‘automatically’ unfair dismissal when the reason for the dismissal is one prescribed by the statutory provisions. These reasons are also known as an ‘inadmissible’ reason for dismissal.

There is no requirement for a qualifying length of service for nearly all cases of automatically unfair dismissal (for ordinary unfair dismissal the minimum length of service of an employee to achieve protection is 2 years),

The ‘reasonableness’ test also is not applicable. The statutory provisions make it clear that dismissal for an inadmissible reason is always deemed unfair. Once it has been established that an inadmissible reason is the reason or principal reason for dismissal, no further enquiry is called for.

A member of our specialist employment team will be able to advise you further on automatically unfair dismissal. Below is a list of inadmissible reasons for dismissal.

  • Family reasons. Unfair dismissal for reasons connected with pregnancy, childbirth, or statutory maternity, paternity, adoption, parental leave, shared parental leave or time off for dependants.
  • Health and safety. Unfair dismissal for a health and safety reason.
  • Sunday working. Unfair dismissal of a shop or betting worker for refusing to work on a Sunday.
  • Working time. Unfair dismissal for a reason connected with rights under the Working Time Regulations 1998 (SI 1998/1833) (WTR).
  • Pensions trustees. Unfair dismissal for performing functions as an occupational pensions trustee.
  • Employee representatives. Unfair dismissal for performing functions as an employee representative on a TUPE transfer or collective redundancy.
  • Whistleblowing. Unfair dismissal for making a protected disclosure.
  • Asserting a statutory right. Unfair dismissal for asserting a statutory right listed in section 104(4) of ERA 1996.
  • Flexible working requests. Unfair dismissal in connection with an application for flexible working.
  • Minimum wage. Unfair dismissal related to the national minimum wage (NMW).
  • Working tax credits. Unfair dismissal for enforcing rights in relation to working tax credit.
  • Blacklisting. Unfair dismissal in connection with a prohibited list under the Employment Relations Act 1999 (Blacklists) Regulations 2010 (SI 2010/493).
  • Time off for training. Unfair dismissal in connection with time off for study and training request rights.
  • Jury service. Unfair dismissal in connection with carrying out jury service.
  • Pensions auto-enrolment. Unfair dismissal of a jobholder if the reason for dismissal was the employer’s duties under the auto-enrolment regime or its contravention of those duties.
  • I&C activities. Unfair dismissal in connection with information and consultation agreement activities.
  • EWCs. Unfair dismissal in connection with European works council activities.
  • Part-time status. Unfair dismissal related to status as a part-time worker.
  • Fixed-term status. Unfair dismissal related to status as a fixed-term employee.
  • Union recognition. Unfair dismissal in connection with trade union recognition.
  • Union membership and activities. Unfair dismissal for trade union membership or non-membership, or participation in trade union activities.
  • Right to be accompanied. Unfair dismissal in connection with exercising the right to be accompanied to a disciplinary or grievance hearing or to a meeting under the statutory retirement procedure.
  • Industrial action. Unfair dismissal for taking part in protected industrial action.
  • Agency workers. Unfair dismissal in connection with exercising prescribed rights as an agency worker.
  • Agency workers. Unfair dismissal in connection with exercising prescribed rights in relation to the removal of the Swedish derogation.
  • Redundancy selection. Unfair dismissal following selection for redundancy on any of the grounds listed above.
  • Zero hours contracts. Unfair dismissal in connection with the breach of an exclusivity term in a zero hours contract.

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