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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

  • Type:
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  • Type:
    Employment law manual

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  • Date:
    19 May 2021
    Type:
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    Employment law manual: Termination of employment

    One of the many consequences of the coronavirus pandemic is that some of the employment measures taken by employers, including health and safety arrangements, may lead to claims of unfair dismissal and automatic unfair dismissal. We have overhauled and enhanced our termination and disciplinary sections of the Employment law manual to help you navigate this tricky area.

  • Date:
    20 January 2021
    Type:
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    Unfair dismissal: Dismissal due to trade union activities, not urinating publicly

    In Rawal v Royal Mail Group Ltd ET, an employment tribunal held that the principal reason for the employee's dismissal was his trade union activities, not because he had urinated in a public place.

  • Date:
    28 November 2019
    Type:
    Law reports

    Whistleblowing dismissal claims: Supreme Court rules on knowledge of decision-maker

    In Royal Mail Group Ltd v Jhuti, the Supreme Court held that, where a dismissal for making protected disclosures is hidden behind an invented reason that is adopted by the decision-maker, the reason for the dismissal is the hidden reason rather than the invented one.

  • Date:
    3 October 2019
    Type:
    Law reports

    Working time: Threat to dismiss was unlawful detriment

    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.

  • Date:
    5 March 2019
    Type:
    Law reports

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

    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:
    Law reports

    Trade union representative unfairly dismissed for retention of confidential information

    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.

  • Date:
    21 June 2018
    Type:
    Commentary and analysis

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    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.

  • Date:
    15 March 2018
    Type:
    Law reports

    Pregnancy discrimination: Decision to dismiss made before knowledge of pregnancy

    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.

About this topic

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