Automatic Unfair Dismissal – A Croner Guide

By Matthew Reymes Cole
05 Apr 2022
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Usually, an employee needs two years of continuous employment to claim unfair dismissal. However, under certain circumstances, individuals can claim automatic unfair dismissal even when they’ve been employed for under two years. If you’re unaware of how this works, and you dismiss an employee, you put yourself at risk of tribunal claims.

It’s a common mistake in employment law. An employer dismisses a worker without proper consideration during their first two years’ service. However, what they don’t realise is that, if the reason for dismissal was discriminatory, most cases won’t have a qualifying service period.

This Croner guide will help you identify why and when automatic unfair dismissal occurs to help you avoid such a situation.

Are you concerned about dismissing an employee and want to make sure you do it by the book? Call our experienced HR advisors on 01455 858 132

Automatically unfair reasons for dismissal

The Equality Act 2010 identifies the nine protected characteristics that every employer must safeguard in the workplace. This means they need to ensure that they don’t treat employees less favourably due to one of these traits. If treated unfavourably or dismissed for reasons related to these traits, an employee can claim unfair dismissal through discrimination.

Most companies strive to make their workplace more inclusive. However, we have seen employers struggle to identify the reason a dismissal is automatically unfair.

An automatic unfair dismissal according to the Employment Rights Act 1996 means that the company terminates employment for the wrong reasons. This legislation details situations where a dismissal will automatically qualify as unlawful.

Most reasons pinpointed by UK law include acts related to protected disclosures, workers’ rights, and freedom of association. For example, an employee can have a solid case of automatic unfair dismissal for whistleblowing. If their company lets them go for raising concerns over safety in the workplace, they can take the employer to a tribunal.

In the following section, we will list the most common types of automatically unfair dismissal.

Automatically unfair dismissal examples

There are many reasons for termination of employment that could make the process unfair and could lead to costly tribunal claims. Some of the main reasons for automatic unfair dismissal include:

  • Taking or asking to take leave for pregnancy, childbirth, adoption, or parental duties
  • Asking for compassionate leave (including bereavement)
  • Whistleblowing for any workplace related concerns (health & safety, workers’ rights and treatment, policies and procedures, discrimination)
  • Taking action at work on health & safety grounds
  • Acting as an employee representative in collective bargaining
  • Acting as a trade union representative
  • Joining or not joining a trade union
  • Participating in protected industrial action
  • Asserting or trying to assert a statutory right (such as statutory sick leave, statutory notice period and statutory maternity pay)
  • Asserting or trying to assert pay and working hours, contractual and legal rights, and requirements
  • Undertaking jury service

This list should give you a fair idea of what to look out for and avoid the termination of an employee. There are other reasons that fall within the same categories of workers’ actions protected by the law. If in doubt, ask us today for free employment law advice* so we can help you understand and avoid legal risks. 

Remedies for automatically unfair dismissal

If the employee can demonstrate the employer let them go for any of the reasons seen above, they can claim compensation for automatic unfair dismissal. Legally, this represents damages paid to the worker for the time they spent out of work and lost income.

To calculate this, the judge multiplies payment for the number of weeks/months without work. The pay is capped at £571/week for dismissals that took place from April 6th, 2022. Still, it can accumulate to a considerable amount in relation to how long the whole process takes.

Besides paying them damages, the company might have to re-employ the staff member they dismissed.

Talk to a Croner HR advisor

When you consider dismissing an employee, ensure that you don’t end their employment for unlawful reasons. If you let them go under circumstances highlighted by the Employment Rights Act 1996, you risk automatically losing a tribunal claim. You might have perfectly valid reasons to end a worker’s service for your company. By checking them against the examples highlighted by the law you will start off on the right foot.

If in doubt over how to avoid making mistakes when dismissing staff members, we can help. Call our 24/7 HR advice line to get free advice today, on 01455 858 132.

About the Author

Matthew Reymes-Cole

Matt joined Croner in 2007 as an employment law consultant and has advised clients of all sizes on all aspects of employment law. He has worked within management positions since 2017 and currently overseas a team within the litigation department, whilst continuing to support a number of clients directly.

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