What is “Automatic Unfair Dismissal” – and why can’t I defend it?

Sep 10, 2020

Where your former employee brings an unfair dismissal claim to Employment Tribunal (“ET”) and establishes that their dismissal was for one of the automatically unfair reasons set down in law, you will not be able to defend the claim – the ET will not be interested in whether the procedure that you followed was fair, for instance – and you will be liable for any unfair dismissal costs awarded.


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Doesn’t my employee need at least two years’ service to claim unfair dismissal?

Unlike ordinary unfair dismissal claims, there is not the usual service requirement for an employee to bring a claim for most of the automatically unfair reasons for dismissal (excepting where they are dismissed because of a TUPE transfer).

What are these automatically unfair reasons?

The automatically unfair reasons for dismissal are numerous and set out in several pieces of legislation.  Dismissal found to be relating to any of the following will be automatically unfair:

  • Family reasons.  Not only pregnancy, childbirth and maternity leave, but parental leave, shared parental leave, adoption and paternity leave, time off for antenatal appointments, time off to accompany the mother to antenatal care, time off for adoption and time off for dependants
  • Health and Safety.
  • Refusing to give up a right under the Working Time Regulations 1998 e.g. the right to a rest break.
  • Sunday working.
  • Whistleblowing
  • Trade union membership or activities.
  • Taking action to enforce the right to be paid the National Minimum Wage.
  • Requests for flexible working.
  • Jury service.
  • Transfer of an undertaking (TUPE).

These are just some of the automatically unfair reasons for dismissal that you might commonly encounter.  Contact us if you would like further details.

What are the risks for my business?

Successful unfair dismissal claims can be costly and disruptive.

  • The financial penalties for unfair dismissal currently comprise a basis award (calculated in the same way as statutory redundancy payments) plus a maximum compensatory award of £88,519, or one year’s salary, whichever is the lower figure.  (As of 6 April 2020.)
  • Although not an everyday occurrence, an ET can also make an order for reinstatement (re-engaging the individual in their previous role in your business) or re-engagement (re-employing them in a different job).

The above maximum compensation limit does not apply for automatically unfair dismissals relating to Health & Safety and whistleblowing, so costs could be even higher.  Also, the basic awards for dismissal on trade union, H&S, occupational pension scheme trustee, employee representative and working time grounds are subject to a minimum amount (£6,562 as of 6 April 2020).

Odin HR’s recommendation

If there is any risk that your employee might claim that their dismissal was due to an automatically unfair reason, you should satisfy yourself that there are other clear, potentially fair reasons for the termination of their employment.

If they have been dismissed for disciplinary or performance, they have a right to appeal against this.  There is not a legal right of appeal for a redundancy dismissal, but the appeal process itself may give you the opportunity to recover the situation and minimise any damage (if necessary) before it gets to an ET.

Your help please

Did you like this Advice blog and could other businesses in your network benefit from it?  Please like and share, and see our website https://www.odinhr.co.uk/ for more advice and information.


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