Automatic unfair dismissal

Updating author: Max Winthrop

Summary

  • The employment legislation sets out a number of reasons for dismissal that are deemed to be automatically unfair. (See Automatically unfair reasons)
  • A redundancy dismissal will be automatically unfair if the reason or principal reason for selecting the employee is for an automatically unfair reason. (See Unfair selection for redundancy)
  • Employees do not need the usual minimum two years' service to be able to bring a claim for automatic unfair dismissal except where the employee is dismissed because of a TUPE transfer. (See No minimum service necessary)
  • Where the tribunal determines that the dismissal was for one of the automatically unfair reasons, the employer will not be able to defend the claim. (See No defence where automatic unfair reason proven)
  • In certain circumstances, an employee may be able to apply for an order for interim relief. (See Interim relief)
  • There is a minimum amount payable as the basic award where the dismissal is for certain automatically unfair reasons. (See Basic award - minimum amount)
  • The statutory cap on the compensatory award does not apply where the automatically unfair reason was related to whistleblowing or health and safety. (See Compensatory award - circumstances where no statutory cap)

Overview

If an employee is dismissed for certain reasons set out in the Employment Rights Act 1996, the Trade Union and Labour Relations (Consolidation) Act 1992 or other employment legislation, the dismissal will be automatically unfair.

Where the tribunal determines that the employee was dismissed for an automatically unfair reason, the employer will have no defence to the claim. The dismissal will be automatically unfair and it is irrelevant whether the employer acted reasonably or followed a fair procedure.

In certain automatic unfair dismissal cases, interim relief may be available to the employee. The effect of a successful application for interim relief is that the tribunal orders the employee's employment to continue until the tribunal determines the claim.

Additional resources on overview

FAQs

No minimum service necessary

Employees do not need the usual minimum two years' service for "ordinary" unfair dismissal claims, to be able to bring a claim for automatic unfair dismissal.

The only exception is where the employee is automatically unfairly dismissed because of the transfer of an undertaking. The two-year qualification period applies for these dismissals.

Proving the reason for dismissal

If the employee is claiming automatic unfair dismissal in circumstances where they have less than two years' service, the onus is on the employee to prove that they have been dismissed for an automatically unfair reason. This is because the tribunal will not have jurisdiction to hear the claim unless the automatic unfair reason is established.

Where the employee has the necessary two years' service to bring a claim for ordinary (ie not automatically) unfair dismissal, the burden of proving the reason for dismissal remains at all times with the employer. While an employee must produce some evidence in support of their automatic unfair dismissal claim, they are required to raise only a prima facie case. They are not required to prove that their dismissal was for an automatically unfair reason.

It follows that, where an employer has failed to satisfy the tribunal that its purported reason was the true reason for dismissal, it must also disprove the employee's allegation to prevent the tribunal concluding that the dismissal was for the automatically unfair reason being claimed.

It is open to the tribunal to find, on the evidence, that the dismissal was for another reason not advanced by the employer or employee (Kuzel v Roche Products Ltd [2008] IRLR 530 CA).

No defence where automatic unfair reason proven

If the tribunal determines that the reason or principal reason for the dismissal was for an automatically unfair reason, it will find the dismissal to be automatically unfair.

The employer has no defence to such a finding and the tribunal will not consider the fairness of the dismissal. This means that it is irrelevant whether the employer acted reasonably or followed a fair procedure.

Unfair selection for redundancy

Under s.105 of the Employment Rights Act 1996, a dismissal for redundancy will be automatically unfair if the reason or principal reason for selecting the employee is:

  • for an automatically unfair reason; and
  • the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by the employee and who had not been dismissed by the employer.

Additional resources on unfair selection for redundancy

FAQs

Policies and documents

"How to" guidance

Line manager briefings

Automatically unfair reasons

The Employment Rights Act 1996, the Trade Union and Labour Relations (Consolidation) Act 1992 and other employment legislation set out a number of reasons for dismissal that are deemed to be automatically unfair.

Under s.99 of the Employment Rights Act 1996, it is automatically unfair to dismiss an employee if the reason or principal reason is for a prescribed reason relating to:

The prescribed reasons are set out in the:

  • Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312);
  • Paternity and Adoption Leave Regulations 2002 (SI 2002/2788);
  • Shared Parental Leave Regulations 2014 (SI 2014/3050); and
  • Parental Bereavement Leave Regulations 2020 (SI 2020/249).

Under these Regulations, the prescribed reasons include that:

  • the employee is pregnant;
  • the employee has given birth;
  • the employee is suspended on maternity grounds because of a health and safety requirement or recommendation;
  • the employee took or sought to take maternity leave, adoption leave, paternity leave, shared parental leave, parental bereavement leave or time off for dependants;
  • the employee did not return from maternity leave because either:
    • the employer failed to notify them of their return date and they reasonably believed their maternity leave had not ended; or
    • their employer gave them less than 28 days' notice to return and it was not reasonably practicable for them to return on the notified date;
  • the employee took, considered taking or refused to take keeping-in-touch days;
  • the employee refused to sign a relevant workforce agreement for the purposes of these Regulations; and
  • the employee had performed functions or activities as an employee representative under that workforce agreement.

The dismissal will not be automatically unfair where the employer took the decision to dismiss the employee before it knew of the employee's pregnancy. There is no positive obligation on an employer to revisit such a decision after it becomes aware of the pregnancy (Really Easy Car Credit Ltd v Thompson EAT/0197/17).

Protection against dismissal on grounds of pregnancy does not extend to employees undergoing IVF treatment who are dismissed when the in-vitro-fertilised ova existed but had not yet been transferred to their uterus (Mayr v Bäckerei Und Konditorei Gerhard Flöckner OHG [2008] IRLR 387 ECJ). However, if the employee was dismissed essentially because they had undergone this advanced stage of IVF treatment, their dismissal may amount to sex discrimination.

Health and safety

Under s.100 of the Employment Rights Act 1996, a dismissal will be automatically unfair if the reason or the principal reason is one of the following:

  • Having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) such activities (s.100(1)(a)). The employee must have been designated over and above their ordinary job duties to carry out these activities, essentially a health and safety officer's function. Appointing an employee to do a job where they must exercise some responsibility to take care of their own health and safety and that of others is not the same thing (Castano v London General Transport Services Ltd EAT/0150/19).

    The protection under s.100(1)(a) may extend to an employee who is dismissed because of the way in which they carried out their health and safety activities. In those circumstances, the tribunal must determine if the manner in which the employee approached the health and safety issue took them outside the scope of health and safety activities (Goodwin v Cabletel UK Ltd [1997] IRLR 665 EAT). Further, the fact that the activities might be resisted or unwelcome by other employees does not undermine that protection (Sinclair v Trackwork Ltd EAT/0129/20).
  • The employee performed (or proposed to perform) their functions as a representative of workers on matters of health and safety at work or as a member of a safety committee (s.100(1)(b)).
  • The employee took part (or proposed to take part) in consultation with the employer under the Health and Safety (Consultation with Employees) Regulations 1996 (SI 1996/1513) or in an election of representatives of employee safety within the meaning of those Regulations (whether as a candidate or otherwise) (s.100(ba)).
  • At a workplace where there was no health and safety representative or safety committee, or where one existed but it was not reasonably practicable for the employee to raise the matter by those means, the employee brought to the employer's attention, by reasonable means, circumstances connected with their work that they reasonably believed were harmful or potentially harmful to health or safety (s.100(1)(c)).
  • In circumstances of danger that the employee reasonably believed to be serious and imminent and could not reasonably have been expected to avert, they left, proposed to leave, or (while the danger persisted) refused to return to their place of work or any dangerous part of the place of work (s.100(1)(d)). "Circumstances of danger" has no limitation and covers any danger, howsoever it originates. For example, the danger could be caused by fellow employees such as bullying or harassing conduct (Harvest Press Ltd v McCaffrey [1999] IRLR 778 EAT).
  • In circumstances of danger that they reasonably believed to be serious and imminent, the employee took (or proposed to take) appropriate steps to protect themselves or others from the danger (s.100(1)(e)). Whether or not the steps were appropriate is to be judged by reference to all the circumstances, including the employee's knowledge and the facilities and advice available to them at the time. The mere fact that the employer did not agree with the employee that there was danger, or that the steps taken were appropriate, is irrelevant (Oudahar v Esporta Group Ltd [2011] IRLR 730 EAT).

The protection against automatic unfair dismissal for health and safety reasons set out in s.100 of the Employment Rights Act 1996 applies only to employees. Protection against termination of the contract for individuals who are workers but not employees comes within provisions relating to detrimental treatment in health and safety cases. See the Employment implications of health and safety laws section for more information.

Coronavirus

The coronavirus (COVID-19) pandemic, and the measures introduced by the Government to combat the virus, add a new layer of complexity to the health and safety responsibilities of employers. An employer must be particularly careful in how it responds to an employee who claims that, because the employer has not put in place sufficient measures to protect them from coronavirus, they are in circumstances of danger that they reasonably believe are serious and imminent. The employer should take these complaints seriously and investigate if the employee's concerns can be addressed. If the employer takes a hasty decision to dismiss without adequate consideration and investigation, the tribunal may determine the dismissal was automatically unfair for a health and safety reason.

Employers may also face automatic unfair dismissal claims for whistleblowing where an employee claims that the employer did not address coronavirus health and safety issues and dismissed them for having raised such concerns.

Sunday working

Under s.101 of the Employment Rights Act 1996, where an employee who is a protected shop or betting worker, or an opted-out shop or betting worker, is dismissed, the dismissal will be regarded as automatically unfair if the reason or principal reason is that they refused (or proposed to refuse) to do shop work, or betting work, on Sunday or on a particular Sunday or because they gave (or proposed to give) an opting-out notice to their employer.

However, the dismissal will not be automatically unfair where the reason or principal reason for the dismissal was that an opted-out shop or betting worker refused (or proposed to refuse) to do shop work, or betting work, on any Sunday or Sundays falling before the end of the opting-out notice period (s.101(2)).

Measures giving greater protection to shop workers who work on Sundays are contained in sch.5 to the Enterprise Act 2016 but have not yet been commenced. While s.44 of the Enterprise Act gives the Government the power to make regulations giving this additional protection, to date, it has not made any such regulations.

Jury service

Under s.98B of the Employment Rights Act 1996, a dismissal will be automatically unfair if the reason or principal reason is because the employee had been summoned for jury service or had been absent from work to attend jury service.

The employer will have a defence to such a claim if it is able to show that:

  • the employee's absence was likely to cause substantial injury to its business;
  • it explained this business effect to the employee; and
  • the employee unreasonably refused to make an application for excusal or deferral.

However, even if the employer is able to defend a claim for automatic unfair dismissal successfully, an employee with two years' service could succeed in an ordinary unfair dismissal claim if the decision to dismiss was unreasonable in all the circumstances or if the employer did not follow a fair procedure.

Working time

Under s.101A of the Employment Rights Act 1996, a dismissal will be automatically unfair if the reason or principal reason is that the employee:

  • refused (or proposed to refuse) to comply with a requirement imposed by their employer in breach of the Working Time Regulations 1998 (SI 1998/1833);
  • refused (or proposed to refuse) to give up a right under these Regulations;
  • failed to sign a relevant workforce agreement; or
  • performed functions or activities as an employee representative or was a candidate in an election to be an employee representative.

To gain the protection of s.101A, the worker must explicitly communicate their refusal to comply with the employer's requirement (Ajayi and another v Aitch Care Homes (London) Ltd EAT/0464/11). However, the worker is not required to state which provision of the Working Time Regulations is in issue or "to have positively asserted a right" under the Regulations (Pazur v Lexington Catering Services Ltd EAT/0018/19).

Employee representatives

Employee representatives have certain rights to be consulted by the employer where there are proposed collective redundancies or the sale or transfer of the employer's business (the Trade Union and Labour Relations (Consolidation) Act 1992 and the Transfer of Undertakings (Protection of Employment) Regulations (SI 2006/246)).

Under s.103 of the Employment Rights Act 1996, a dismissal will be automatically unfair if the reason or principal reason is that the employee:

  • performed (or proposed to perform) any functions or activities as an employee representative;
  • was a candidate in an election to be an employee representative; or
  • participated in an election of employee representatives.

Public interest disclosures (whistleblowing)

Under s.103A of the Employment Rights Act 1996, a dismissal will be automatically unfair if the reason or principal reason is that the employee made a protected disclosure. The employer's belief that the disclosure is not protected is irrelevant (Beatt v Croydon Health Services NHS Trust [2017] IRLR 748 CA).

The protection against automatic unfair dismissal in s.103A applies only to employees. Protection against termination of the contract for individuals who are workers but not employees comes within provisions relating detrimental treatment.

Coronavirus

Employers should be particularly careful about how they deal with health and safety issues raised by employees during the coronavirus pandemic. Genuine concerns about the adequacy of an employer's health and safety measures are likely to amount to protected disclosures, provided that the employee making the disclosures has a reasonable belief that they are doing so in the public interest. This means that an employee who is dismissed (for example selected for redundancy) for making such disclosures could bring an automatic unfair dismissal claim for whistleblowing.

Another scenario that could lead to a whistleblowing claim is if an employer dismisses an employee for raising genuine concerns about the employer's use of the Coronavirus Job Retention Scheme, such as employees being required to continue working while furloughed (contrary to the scheme's rules).

Occupational pension scheme trustees

Under s.102 of the Employment Rights Act 1996, a dismissal will be automatically unfair if the reason or principal reason is that the employee performed (or proposed to perform) functions as a trustee of an occupational pension scheme related to their employment.

Asserting statutory rights

Under s.104 of the Employment Rights Act 1996, a dismissal will be automatically unfair if the reason or principal reason is that the employee:

  • brought proceedings against the employer to enforce a statutory right; or
  • made an allegation that the employer had infringed one of the employee's statutory rights.

The relevant statutory rights are:

  • any right under the Employment Rights Act 1996 where the remedy for a breach is by way of a claim to an employment tribunal;
  • the right to statutory minimum notice;
  • rights under the Trade Union and Labour Relations (Consolidation) Act 1992 in relation to deductions from pay, union membership and activities and related time off (s.68, s.86, ss.145A and 145B, s.146, ss.168 and 168A and ss.169 and 170);
  • rights under the working time legislation; and
  • rights under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246).

An employee's rights against discrimination are not included because redress is available under the victimisation provisions of the Equality Act 2010. Further, the dismissal of an employee who asserted their right not to be subjected to discrimination would likely be deemed unfair under ordinary unfair dismissal law.

It is immaterial whether the employee has the right or if the right has been infringed, provided that the claim is made in good faith (s.104(2) of the Employment Rights Act 1996 and Mennell v Newell & Wright (Transport Contractors) Ltd [1997] IRLR 519 CA).

However, the employee must have made an allegation that there has been an infringement of one of their statutory rights. An allegation that there may be a breach in the future is not sufficient. The thrust of the allegation must be "you have infringed my right", not merely "you will infringe my right" (Spaceman v ISS Mediclean Ltd t/a ISS Facility Service Healthcare EAT/0142/18).

National minimum wage

Under s.104A of the Employment Rights Act 1996, a dismissal will be automatically unfair if the reason or principal reason is in connection with an employee's rights under the national minimum wage legislation, including that;

  • the employee had taken action to enforce their statutory right to be paid the national minimum wage;
  • the employer was prosecuted for an offence under the legislation because of action taken by the employee; and
  • the employee qualified, or was about to qualify, to be paid the national minimum wage or receive a particular national minimum wage rate.

It does not matter if the employee has the right, or if the right has been infringed, provided that the employee's claim was made in good faith (s.104A(2) of the Employment Rights Act 1996).

Blacklisting on grounds of trade union membership or activities

Regulation 3 of the Employment Relations Act 1999 (Blacklists) Regulations (SI 2010/493) prohibits an employer from compiling, using, selling or supplying a blacklist.

A blacklist is:

  • a list of people who are (or were) trade union members or who engage (or engaged) in trade union activities; and
  • compiled with a view to discriminate against these individuals in relation to their recruitment or treatment.

Under s.104F of the Employment Rights Act 1996, a dismissal will be automatically unfair if the reason or principal reason is related to a blacklist and the employer:

  • contravened reg.3 of the Regulations; or
  • relied on information supplied by a person who had acted unlawfully in relation to that list, and it knew or ought reasonably to have known that the information relied on was supplied in contravention of that regulation.

Trade union recognition issues

Under para.161 to sch.A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A), a dismissal will be automatically unfair if the reason or principal reason is because the employee:

  • took action to obtain or prevent trade union recognition;
  • indicated that they supported or did not support trade union recognition;
  • took action to secure or prevent the ending of collective bargaining arrangements;
  • indicated that they supported or did not support the end of collective bargaining arrangements;
  • influenced or sought to influence other employees to vote or how they voted;
  • voted in such a ballot; or
  • proposed, failed or declined to do any of the above acts.

However, the dismissal will not be automatically unfair if the reason was an unreasonable act or omission by the employee.

Trade union membership or activities

Under s.152 of TULR(C)A, the dismissal of an employee will be regarded as automatically unfair where the principal reason is that the employee:

  • was a member of an independent trade union (or proposed to become a member);
  • took part in the activities of an independent trade union at an appropriate time (or proposed to do so);
  • used trade union services at an appropriate time (or proposed to do so);
  • was not a member of any trade union, or a particular trade union, or a number of particular unions, or had refused (or proposed to refuse) to become or remain a member; or
  • failed to accept an offer of inducement relating to union membership or activities (made in contravention of s.145A of TULR(C)A), or failed to accept an offer of inducement relating to collective bargaining (made in contravention of s.145B of TULR(C)A).

An "appropriate time" means a time outside an employee's working hours or a time within their working hours at which, in accordance with arrangements agreed with, or consent given by, the employer, it is permissible for them to take part in trade union activities or make use of trade union services (s.152(2)).

"Trade union services" means services made available to an employee by an independent union because of their membership of that union, and making use of such services includes an employee consenting to a matter being raised on their behalf by the union (s.152(2A)).

The protection against automatic unfair dismissal for reasons related to trade union membership or activities set out in s.152 of the Employment Rights Act 1996 applies only to employees. Protection against termination of the contract for individuals who are workers but not employees comes within provisions relating to detrimental treatment. See The consequences of trade union recognition for more information.

Industrial action

Under s.238A of TULR(C)A, a dismissal will be automatically unfair if the reason or principal reason is that the employee took protected (ie lawful and official) industrial action and:

  • the dismissal takes place within 12 weeks, excluding any "lock-out" days (ie days when the employer closes the place of employment, suspends work or refuses to continue to employ any number of persons with a view to compelling employees to accept terms or conditions affecting employment), beginning with the day on which the employee started to take protected industrial action;
  • the employee is dismissed after the expiry of the 12-week period but had stopped taking protected industrial action before the end of that period; or
  • the employee continued to take industrial action after the expiry of that 12-week period and was subsequently dismissed in circumstances where "the employer had not taken such procedural steps as would have been reasonable for the purposes of resolving the dispute to which the protected industrial action relates".

Employees who engage in unofficial industrial action do not have the right to bring an automatic unfair dismissal claim (s.237 of TULR(C)A).

Right to be accompanied at a disciplinary or grievance hearing

Under s.12(3) of the Employment Relations Act 1999, a dismissal will be automatically unfair if the reason or principal reason is that, under s.10 of the Act, the employee:

  • exercised or sought to exercise their statutory right to be accompanied at a disciplinary or grievance hearing; or
  • accompanied a fellow employee to such a hearing.

Asserting a part-time worker right

Under reg.7 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) (see Part-time workers), a dismissal will be automatically unfair if the reason or principal reason is that the employee:

  • brought proceedings against their employer under the Regulations;
  • asked their employer for a written statement explaining the reasons for their less favourable treatment (under reg.6);
  • gave evidence or information in connection with any proceedings brought by an employee or worker under the Regulations;
  • otherwise did anything under these Regulations in relation to the employer or any other person;
  • alleged that the employer has infringed the Regulations;
  • refused (or proposed to refuse) to give up one of their rights under the Regulations; or
  • is believed or suspected by the employer to have done any of the things set out above.

Regulation 7 does not give workers the right to claim automatic unfair dismissal for asserting a part-time worker right. This right applies only to employees. However, part-time workers are protected from being subjected to any detriment because of any act or omission done by their employer on the above grounds (reg.7(2)).

Asserting the right to request flexible working

Under s.104C of the Employment Rights Act 1996, a dismissal will be automatically unfair if the reason or principal reason is that the employee:

  • made (or proposed to make) an application for flexible working (under s.80F of the Employment Rights Act 1996);
  • brought employment tribunal proceedings against their employer in relation to their right to request flexible working (under s.80H); or
  • alleged the existence of any circumstances that would amount to a ground for commencing such tribunal proceedings (whether before a tribunal or otherwise).

Asserting a fixed-term employee right

Under reg.6 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (SI 2002/2034) (see Fixed-term workers), a dismissal will be automatically unfair if the reason or principal reason is that the employee:

  • brought proceedings against their employer under the Regulations;
  • asked their employer for a written statement explaining the reasons for their less favourable treatment (under reg.5), or one confirming that their contract is no longer fixed term and that they are now a permanent employee (under reg.9);
  • gave evidence or information in connection with any such proceedings brought by an employee;
  • otherwise did anything under the Regulations in relation to the employer or any other person;
  • alleged that the employer had infringed the Regulations;
  • refused (or proposed to refuse) to give up one of their rights under the Regulations;
  • declined to sign a workforce agreement for the purposes of the Regulations:
  • performed (or proposed to perform) any duties as a representative (or as a candidate for election as a representative) of the workforce; or
  • is believed or suspected by the employer to have done any of the things set out above.

The Regulations apply only to employees, not workers.

Transfer of an undertaking

Under reg.7 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE Regulations 2006) (see Transfer of undertakings (TUPE)), a dismissal will be automatically unfair if the reason or principal reason is:

This is the case whether the dismissal is before or after the transfer. Even if the dismissal is a pre-transfer dismissal, the liability for the automatically unfair dismissal will pass to the transferee.

However, unlike the other automatically unfair reasons for dismissal, an employee must meet the two years' continuous service requirement to bring a claim for automatic unfair dismissal under reg.7 of the TUPE Regulations 2006.

Where the transferor or transferee can establish an ETO reason, the dismissal will not be automatically unfair. In these circumstances, it will be treated as a dismissal for some other substantial reason, or redundancy (if the statutory definition of redundancy is met) and subject to the test of fairness under the Employment Rights Act 1996. This means that the dismissing employer could still be liable for a claim of ordinary unfair dismissal.

Information and consultation

Employees who are an employee representative, negotiating representative, information and consultation representative or a candidate in an election to be such a representative, are entitled to protection against dismissal.

Under reg.30 of the Information and Consultation of Employees Regulations 2004 (SI 2004/3426) (see Informing and consulting on employment matters), a dismissal of such an employee will be automatically unfair if the reason or principal reason is that the employee:

  • performed (or proposed to perform) any functions or activities as a representative or candidate;
  • exercised (or proposed to exercise) their entitlement to time off (under reg.27) and/or to be paid for time off (under reg.28); or
  • the employee or a person acting on their behalf made (or proposed to make) a request to exercise their entitlement under regs.27 and/or 28.

A dismissal will also be automatically unfair if the reason or principal reason is that the employee (whether or not they are a representative):

  • took (or proposed to take) employment tribunal proceedings to enforce a right or secure an entitlement under the Regulations (reg.30(6)(a));
  • exercised (or proposed to exercise) any entitlement to apply or complain to the Central Arbitration Committee or the Employment Appeal Tribunal under the Regulations or to exercise the right to appeal in connection with any rights under these Regulations (reg.30(6)(b));
  • requested (or proposed to request) data to determine the number of individuals employed at the employer's UK undertaking (reg.30(6)(c));
  • acted with a view to securing that an agreement was or was not negotiated or that the standard information and consultation provisions did or did not apply (reg.30(6)(d));
  • indicated that they supported or did not support the coming into existence of a negotiated agreement or the application of the standard information and consultation provisions (reg.30(6)(e));
  • stood as a candidate in an election to be a negotiating or information and consultation representative (reg.30(6)(f));
  • influenced or sought to influence by lawful means the way in which votes were to be cast by other employees in a ballot arranged under these Regulations (reg.30(6)(g));
  • voted in such a ballot (reg.30(6)(h));
  • expressed doubts (to a ballot supervisor or otherwise) about whether or not the ballot had been properly conducted (reg.30(6)(i)); or
  • proposed, failed or declined to do any of the things mentioned in reg.30(6)(d) to (i) (reg.30(6)(j)).

It does not matter if the employee had the right, or if the right was infringed, provided that the employee's claim was made in good faith (reg.30(7)).

The Transnational Information and Consultation of Employees Regulations 1999 (SI 1999/3323) give similar protection against dismissal to representatives of a special negotiating body, or a European Works Council, and to candidates for those positions.

Exclusivity terms in zero hours contracts

Under reg.2(1) and (3) of the Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 (SI 2015/2021), a dismissal will be automatically unfair if the reason or principal reason is that the employee breached an exclusivity term in their zero hours contract that prohibited them from working for another employer.

Asserting an agency worker right

Under reg.17 of the Agency Workers Regulations 2010 (SI 2010/93) and reg.5(2) of the Agency Workers (Amendment) Regulations 2019 (SI 2019/724) (see Agency workers), a dismissal will be automatically unfair if the reason or principal reason is that the agency employee:

  • brought proceedings under the Regulations;
  • gave evidence or information in connection with proceedings under the Regulations brought by another agency worker;
  • made an information request under reg.16;
  • otherwise did anything under the Regulations in relation to a temporary work agency, hirer, or any other person;
  • alleged that a temporary work agency or hirer has breached the Regulations (provided that the allegation is not false and was made in good faith);
  • refused (or proposed to refuse) to give up a right under the Regulations; or
  • is believed or suspected to have done any of the things set out above.

Regulation 17 does not give workers the right to claim automatic unfair dismissal for asserting an agency worker right. This right applies only to employees. However, agency workers are protected from being subjected to any detriment because of any act or omission done by their employer on the above grounds (reg.17(2)).

Other automatically unfair reasons

Dismissals will also be automatically unfair where the reason relates to:

  • tax credits as set out in s.104B of the Employment Rights Act 1996;
  • pensions auto-enrolment as set out in s.104D of the Employment Rights Act 1996;
  • requests in relation to study or training as set out in s.104E of the Employment Rights Act 1996;
  • circumstances set out in the European Public Limited-Liability Company Regulations 2004 (SI 2004/2326); and
  • refusing to accept an offer to become an employee-shareholder as set out in s.104G of the Employment Rights Act 1996.

Additional resources on automatically unfair reasons

FAQs

"How to" guidance

Interim relief

An employee may be able to apply to an employment tribunal for an order for interim relief in certain types of automatically unfair dismissal cases. Sections 128 to 132 of the Employment Rights Act 1996 and ss.161 to 166 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A) set out the conditions and process for obtaining interim relief.

Interim relief is a temporary remedy that maintains the employment situation until a full hearing takes place. For example, an employer could be ordered to reinstate or re-engage an employee or make an order for the continuation of an employee's contract of employment until the issue is finally resolved at a full tribunal hearing.

Qualifying claims

Applications for interim relief are possible only where the automatic unfair reason is alleged to be:

  • carrying out activities as a designated health and safety employee or performance of any functions as a health and safety representative section (s.100(1)(a) and (b) of the Employment Rights Act 1996);
  • performance of any functions or activities as a working time workforce representative or candidate (s.101A(d) of the Employment Rights Act 1996);
  • performance of functions as the trustee of an occupational pension scheme (s.102(1) of the Employment Rights Act 1996);
  • performance of any functions or activities as an employee representative or candidate for the purposes of collective redundancies or a transfer of an undertaking (s.103 of the Employment Rights Act 1996);
  • related to the right to be accompanied at disciplinary and grievance meetings (s.12(5) of the Employment Relations Act 1999);
  • protected disclosures (whistleblowing) (s.103A of the Employment Rights Act 1996);
  • activities relating to trade union recognition, collective bargaining or related balloting (para.161 to sch.A1 of TULR(C)A);
  • unlawful use of a trade union blacklist (s.104F of the Employment Rights Act 1996); or
  • trade union membership or activities (s.152 of TULR(C)A).

Application process

There are strict time limits for making an application to the tribunal for interim relief.

The application must be made within seven days following the effective date of termination.

Where an application for interim relief accompanies a claim for automatic unfair dismissal, the usual requirement for an employee to obtain a certificate of early conciliation from Acas does not apply (reg.3(1)(d) of the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 (SI 2014/254)).

The tribunal must determine the application for interim relief "as soon as practicable" (s.128(3) of the Employment Rights Act 1996 and s.162(1) of TULR(C)A).

Determining the application

The tribunal will make an order for interim relief only where it is satisfied that the employee's automatic unfair dismissal claim is likely to succeed at the final hearing (s.129(1) of the Employment Rights Act 1996 and s.163(1) of TULR(C)A). "Likely" means "a pretty good chance of succeeding" (Taplin v Shippam [1978] IRLR 450 EAT). This does not mean more likely than not, but that there is a significantly high likelihood (Ministry of Justice v Sarfraz [2011] IRLR 562 EAT).

Interim relief orders

If the application is successful, the tribunal will ask the employer if it is willing to reinstate or re-engage the employee pending the determination of their automatic unfair dismissal claim (s.129(3) of the Employment Rights Act 1996 and s.163(2) of TULR(C)A).

If the employer is willing to reinstate the employee, the tribunal will make an order to that effect.

If the employer is willing to re-engage the employee "in another job on terms and conditions not less favourable", the tribunal will make an order to that effect after ascertaining the employee's agreement (s.129(3) and (6) of the Employment Rights Act 1996 and s.163(2) and (5) of TULR(C)A).

The tribunal will make a continuation order if either:

  • the employer refuses to reinstate or re-engage the employee; or
  • the employee refuses to accept the terms of re-engagement and the tribunal finds their refusal reasonable.

The effect of a continuation order is that the employee's contract is treated as continuing for the purposes of their entitlement to pay, benefits, pension rights and continuity of employment, from the termination date until the date that the tribunal determines their claim (s.130 of the Employment Rights Act 1996 and s.164 of TULR(C)A).

The tribunal does not have the power to order the employer to accept the employee back into the workplace.

Under s.132 of the Employment Rights Act 1996 and s.166 of TULR(C)A, if an employer fails to comply with a continuation order, the tribunal may:

  • award compensation for non-compliance of such amount as it considers just and equitable in all the circumstances having regard to the infringement of the employee's right under the order to be reinstated or re-engaged; and
  • order the employer to pay the amount of wages due under the continuation order.

The tribunal will dismiss the employee's application for interim relief if the employee rejects the employer's offer of re-engagement and the tribunal finds their refusal unreasonable.

At any time between the making of an interim relief order and the determination of the claim, either the employer or employee can apply to the tribunal for a variation or revocation of the order on the ground of a relevant change of circumstances (s.131 of the Employment Rights Act 1996 and s.165 of TULR(C)A).

Settlement

Employers and employees may wish to attempt to settle a claim or a potential claim of unfair dismissal rather than proceed to a tribunal hearing. Settlement discussions can take place before the dismissal takes effect, or after the employment relationship has ended and either before or after the employee has filed a claim of unfair dismissal in the tribunal.

However, to prevent employees from being pressured to settle their claim of unfair dismissal, s.203(1) of the Employment Rights Act 1996 provides that any agreement to prevent an employee from presenting or pursuing a complaint of unfair dismissal is void and will have no effect. The three exceptions to this are where settlement is achieved through:

In claims of ordinary unfair dismissal, evidence of pre-termination negotiations is inadmissible under s.111A of the Employment Rights Act 1996. However, pre-termination discussions are not protected if the employee has been dismissed, or selected for redundancy, for an automatically unfair reason.

Time limits for claims

An employee must normally present an unfair dismissal claim to the employment tribunal before the end of three months, beginning with the effective date of termination.

The time limit is extended where the requirement for early conciliation applies.

The tribunal has a discretion to extend the time limit by such further period it considers reasonable provided that it is satisfied that it was not reasonably practicable for the claim to be presented within the time limit (s.111(2) of the Employment Rights Act 1996).

Remedies

Where an employment tribunal has found that the dismissal was automatically unfair, it may make an order for reinstatement or re-engagement or for compensation. In the vast majority of cases the tribunal makes an award of compensation.

If an employer fails to comply fully with the terms of an order to reinstate or re-engage the employee, the tribunal will award such compensation as it thinks fit having regard to the loss sustained by the employee as a result of the employer's failure (s.117(2) of the Employment Rights Act 1996).

Where the employer fails to reinstate or re-engage the employee, the tribunal will make an additional award over and above the basic and compensatory awards for unfair dismissal (see Non-compliance with reinstatement or re-engagement order for further information).

Reinstatement

An order for reinstatement is an order that the employer shall treat the employee in all respects as if they had not been dismissed (s.114 of the Employment Rights Act 1996).

Re-engagement

If a tribunal decides not to order reinstatement it must consider if it is appropriate to order re-engagement (s.115 of the Employment Rights Act 1996).

Compensation

Where a tribunal makes an award of compensation for unfair dismissal, the award must consist of a basic award and a compensatory award (s.118(1) of the Employment Rights Act 1996). An additional award is made only in particular circumstances.

A dismissal for certain automatically unfair reasons (eg related to pregnancy or maternity) will also amount to unlawful discrimination under the Equality Act 2010. There is no limit on the amount of compensation that can be awarded in a discrimination claim. The discrimination award usually includes an award for injury to feelings, which is not available under the unfair dismissal legislation.

Basic award - minimum amount

The basic award is calculated according to age, length of service and normal weekly pay in the same way as a statutory redundancy payment.

Under s.120(1) of the Employment Rights Act 1996, the basic award will be not less than £6,634 where the effective date of termination is on or after 6 April 2021 and the employee is dismissed, or selected for redundancy, for one of a number of automatically unfair reasons, including:

  • carrying out functions as an employee representative, or a candidate to be such a representative, under the working time legislation;
  • on grounds of trade union membership or activities;
  • for carrying out legitimate health and safety activities as a safety representative;
  • for carrying out functions as an employee representative, or a candidate to be such a representative, in relation to collective redundancies or a transfer of an undertaking; and
  • for carrying out functions as an occupational pension scheme trustee.

The basic award will be not less than £5,000 where the employee is automatically unfairly dismissed in relation to blacklisting on grounds of trade union membership or activities (s.120(1C) of the Employment Rights Act 1996).

Compensatory award - circumstances where no statutory cap

The compensatory award is such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the employee as a result of their dismissal, in so far as that loss is attributable to action taken by the employer (s.123(1) of the Employment Rights Act 1996).

The compensatory award is subject to a statutory maximum. This is the lower of:

  • £89,493 in relation to dismissals where the effective date of termination is on or after 6 April 2021; and
  • 52 weeks' gross pay (uncapped) of the employee concerned.

However, under s.124(1A) of the Employment Rights Act 1996, there is no statutory cap on the amount of the compensatory award where the employee is dismissed, or selected for redundancy, for an automatically unfair reason related to health and safety or whistleblowing.

Where the employee's dismissal also amounts to unlawful discrimination under the Equality Act 2010, there is no limit on the amount of compensation that can be awarded.

Additional award

An additional award is made only where there has been non-compliance with an order for reinstatement or re-engagement.

Key references

Legislation

Trade Union and Labour Relations (Consolidation) Act 1992
Employment Rights Act 1996
Employment Relations Act 1999
Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312)
Paternity and Adoption Leave Regulations 2002 (SI 2002/2788)
Shared Parental Leave Regulations 2014 (SI 2014/3050)
Parental Bereavement Leave Regulations 2020 (SI 2020/249)
Working Time Regulations 1998 (SI 1998/1833)
Transfer of Undertakings (Protection of Employment) Regulations (SI 2006/246)
Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551)
Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (SI 2002/2034)
Information and Consultation of Employees Regulations 2004 (SI 2004/3426)
Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 (SI 2015/2021)
Agency Workers Regulations 2010 (SI 2010/93)