What is an automatic unfair dismissal?
Most employers are familiar with the term ‘unfair dismissal’, its naturally something they try to avoid at all costs.
If you were to ask employers what they know to be an unfair reason for dismissal, answers will no doubt include things like, dismissing someone for being pregnant or whistle blowing. However, there are many reasons which fall under this category which may come as a surprise to many.
Here are the automatically unfair reasons for dismissal and brief explanations as to what they mean:
- Pregnancy, including all reasons relating to maternity
This one is obvious. If an employee announces her pregnancy and is dismissed that is also direct sex discrimination as well as automatic unfair dismissal.
- Family, including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants
If an employee is dismissed for exerting any of the above rights to time off, then this will be automatically unfair
- Acting as an employee representative
If for example an employee represents another at a disciplinary hearing for example and they are dismissed for doing so, this will be automatically unfair
- Acting as a trade union representative
Dismissing someone because they are fulfilling their role as a representative of a trade union is never a good idea and is again automatically unfair
- Acting as an occupational pension scheme trustee
A rare scenario admittedly but again automatically unfair
- Joining or not joining a trade union
Even if you do not recognise a trade union at your company you must never dismiss an employee for joining a union or refusing to join the union if your company does recognise one
- Being a part-time or fixed-term employee
Why would you dismiss someone for being part-time? This often comes up in redundancy scenarios, where it is seen as being legitimate to keep full-time staff over part-time staff. It is automatically unfair to select someone for redundancy because they are ‘only part-time’, nor is it fair to dismiss a part-time worker because they are ‘inflexible’ e.g., you have asked them to do extra hours and they refuse. It is also discriminatory to subject them to less favourable treatment like excluding them from accessing employee benefits.
- Pay and working hours, including the Working Time Regulations, annual leave and the National Minimum Wage
An employee raises a grievance about a statutory pay dispute or working time breach and they are dismissed- it will be automatically unfair.
Put simply, if an employee makes a protected disclosure (or ‘blows the whistle’) such as informs their employer or a regulator of unsafe working practices or illegal activities and they are dismissed as a result, it is automatically unfair.
What’s the difference between an unfair dismissal and an automatic unfair dismissal?
Not a great deal in the sense that both are ‘unfair’ but from my experience many dismissals fall foul of the law not necessarily because of the reason for the dismissal being unfair or unreasonable but because a fair process was not followed, or statutory rights have been breached.
You can carry out the most water tight process prior to a dismissal but if the reason for the dismissal is one of those listed above it will be unfair, automatically.
An employee can only claim unfair dismissal if they have worked for me for two consecutive years, so they can’t be automatically unfairly dismissed, can they?
Yes, they can.
Usually employees require two years’ service to bring an unfair dismissal claim but if they have been dismissed for an automatically unfair dismissal there is NO qualifying service required.
ALERT: The maximum award for compensation for unfair dismissal is rising to £102,194.00 on 6th April 2019– you cannot afford to make mistakes, call our experts before taking action to terminate anyone’s employment.
What if an employee has committed a genuine act of misconduct or gross misconduct (read more here) but they have just announced they are pregnant, does this mean I cannot take action?
No. It just means that you are going to have to be careful, especially if terminating their employment.
Your investigation will need to be thorough and your evidence strong. This is the best way to ensure that you can deal with the very serious allegations but not leave your company exposed to an automatically unfair dismissal and discrimination claim, which will be very costly.