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

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