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Automatically unfair dismissal

Stephen SimpsonEditor's message: Some reasons for dismissal are potentially fair, such as conduct, capability and redundancy. However, some other reasons for dismissal are treated as automatically unfair. The usual minimum two years' service for bringing a claim does not apply to most automatically unfair reasons for dismissal.

Automatically unfair dismissals include dismissals because of pregnancy; for making a public interest disclosure (ie whistleblowing); for taking part in official industrial action; and for asserting a statutory right (such as refusing to opt out of the 48-hour working week).

It is highly unlikely that someone within your organisation, such as a line manager, will openly give one of these reasons as the rationale for a dismissal. However, HR professionals and senior staff dealing with dismissal proceedings should make sure that, where a potentially fair reason is given, it is the real one.

Look out in particular for a pregnant employee, whistleblower, trade unionist or asserter of a statutory right being dismissed under the guise of a conduct, capability or redundancy reason. Make sure that in reality the dismissal falls squarely under one of the potentially fair reasons for dismissal and that there is not a smokescreen to hide an automatically unfair motive.

Stephen Simpson, principal employment law editor

New and updated

  • Unfair dismissal

    Type:
    Employment law manual

    Updated to include information on the maximum amount of a week’s pay for the purpose of calculating the basic award, effective from 6 April 2020.

  • Working time: Threat to dismiss was unlawful detriment

    Date:
    3 October 2019
    Type:
    Law reports

    In Pazur v Lexington Catering Services Ltd, the Employment Appeal Tribunal held that a kitchen porter had been subjected to a detriment when he was threatened with dismissal after he refused to return to work following a breach of his right to a rest break.

  • TUPE: Dismissal prior to transfer for reasons "personal" to employee was unfair

    Date:
    5 March 2019
    Type:
    Law reports

    In Hare Wines Ltd v Kaur and another, the Court of Appeal upheld the tribunal's decision that the employee's dismissal was automatically unfair by reason of a TUPE transfer because the employer had not taken action to resolve her poor working relationships prior to the transfer, but did so by dismissing her at the time of the transfer.

  • Date:
    21 June 2018
    Type:
    Legal guidance

    Consultant editor Darren Newman looks at a recent case in which the Court of Appeal had to consider if, in sharing information from a manager's desk diary, a trade union rep had acted outside the scope of trade union activities for the purposes of the automatically unfair dismissal protection afforded by s.152 of the Trade Union and Labour Relations (Consolidation) Act 1992.

  • Trade union representative unfairly dismissed for retention of confidential information

    Date:
    21 June 2018
    Type:
    Law reports

    In Morris v Metrolink RATP DEV Ltd, the Court of Appeal held that a trade union representative who retained confidential information related to a restructuring exercise was unfairly dismissed.

  • Pregnancy discrimination: Decision to dismiss made before knowledge of pregnancy

    Date:
    15 March 2018
    Type:
    Law reports

    In Really Easy Car Credit Ltd v Thompson, the Employment Appeal Tribunal (EAT) allowed the appeal and held that the employer was not obliged to revisit its decision to dismiss when it became aware that the employee was pregnant.

  • Whistleblowing: Motivation of manager manipulating evidence not attributed to employer

    Date:
    29 January 2018
    Type:
    Law reports

    In Royal Mail Ltd v Jhuti [2018] IRLR 251 CA, the Court of Appeal held that the motivation of a manager who manipulated evidence to procure the dismissal of a whistleblowing employee could not be attributed to the employer, as the decision to dismiss was taken by a manager who was not motivated by the employee's protected disclosures.

  • Whistleblowing: No unfair dismissal where decision-maker unaware of protected disclosure

    Date:
    30 October 2017
    Type:
    Law reports

    The Court of Appeal has held that a claimant cannot succeed in a whistleblowing unfair dismissal claim where the decision-maker was unaware of the protected disclosure at the time of the decision to dismiss.

  • Case round-up

    Date:
    1 October 2016
    Type:
    Law reports

    David Malamatenios is partner at Colman Coyle solicitors. He rounds up the latest rulings.

  • Morgan v Royal Mencap Society: disclosure could be in the public interest

    Date:
    3 June 2016
    Type:
    Law reports

    In Morgan v Royal Mencap Society, the Employment Appeal Tribunal (EAT) held that an employment tribunal was wrong to strike out a whistleblowing claim on the basis that an employee's complaint about cramped working conditions was not "in the public interest". Naomi Clarkson explains this recent employment case.

About this topic

HR and legal information and guidance relating to automatically unfair dismissal.