There are certain circumstances in which a dismissal may be classed as automatically unfair, regardless of the employee’s length of service.
It’s a common misconception that an employee that has not yet accrued two years’ continuous service can be dismissed without the need to provide a fair reason or to follow a fair process.
If an employee can show that they have been dismissed for a reason the law considers to be automatically unfair, they may be able to bring a claim against their employer to the Employment Tribunal, irrespective of how long they have worked for the organisation.
To avoid costly tribunal claims, employers therefore need to understand how to dismiss an employee lawfully and when a dismissal could be deemed automatically unfair.
An automatically unfair dismissal is a dismissal that is so inherently unfair that an employee is not required to prove two years’ continuous service. This is because employees are afforded specific proection by law if dismissed in circumstances where the dismissal violates their basic employment rights. The only exception is where the employee is dismissed because of a TUPE transfer.
Where an employee is able prove one of the reasons prohibited by law, there is also no need for them to show that their employer acted unreasonably or failed to follow a fair procedure, as is necessary to establish the basis of an ordinary unfair dismissal claim. The reason, in itself, will be considered automatically unfair, with no further consideration as to either the reasonableness of the decision to dismiss or the procedural fairness of the employer’s actions.
Unfair dismissal is a far more difficult type of claim for an aggrieved employee to bring when compared with automatically unfair dismissal, not least because this requires a minimum of two years’ service, as well as sufficient evidence to show that the employer is unable to satisfy the two-stage test for a fair dismissal.
If the employer can show that they had a potentially fair reason for dismissing the employee and they acted reasonably in treating that reason as sufficient for dismissal, following a fair process throughout – unless the employee can show that the reason advanced by the employer for the dismissal is wrong, and/or that the decision to dismiss was in any event unfair – the claim will fail.
There are five statutory fair reasons for dismissing an employee: capability; conduct; redundancy; illegality, where continued employment would result in a breach of a statutory restriction; or some other substantial reason (SOSR). SOSR is a ‘catch-all’ provision that allows an employer to fairly dismiss an employee where no other potentially fair reason applies, for example, where there has been a breakdown in the mutual trust and confidence between the parties.
These statutory reasons cover a wide range of scenarios that an employer can rely upon, especially capability and conduct, where an employer can point to various different types of misconduct or poor performance issues, as long as the employee was given fair warning where appropriate, and the decision to dismiss fell within a range of reasonable responses in all the circumstances.
In some cases, an employer may even be justified in summarily dismissing an employee, ie; without notice or pay in lieu of notice. This is usually where the employer has clear evidence of gross misconduct on the part of the employee, such as fraud, theft, physical violence at work, intoxication through either drink or drugs, serious breaches of health and safety, or serious insubordination.
Grounds for dismissal that are deemed to be automatically unfair require no qualifying period of employment for an unfair dismissal claim to be brought.
There are around 60 different grounds upon which an employee can claim for automatically unfair dismissal before an employment tribunal, primarily designed to protect the basic statutory rights of employees.
Examples of reasons with the widest application where it would be classed as automatically unfair include any reason connected to:
This list is not exhaustive, where there are several other grounds that may mean an employee has the basis of a claim for automatically unfair dismissal.
Further, it is important to be aware that if you dismiss an employee for a reason related to a protected characteristic under the Equality Act 2010 – such as age, disability, race, religion, sex or sexual orientation – this would not only amount to an automatically unfair dismissal, but also unlawful discrimination.
Dismissal for a reason connected with pregnancy or maternity is an automatically unfair reason for dismissal. This means that if an employee is dismissed because she is pregnant or off work sick with a pregnancy-related illness, or on maternity leave, she may be able to claim for automatically unfair dismissal regardless of how long she has worked for you.
In addition to being eligible to claim for automatically unfair dismissal, an employee dismissed for any reason connected with her pregnancy or maternity may also be able to claim for unlawful discrimination, for which you can be ordered to pay an uncapped award of damages.
You will not be able to escape liability by arguing that either the employee has not accrued two years’ service, as this protection arises from day one of their employment. You will also be unable to defend your decision to dismiss on grounds of what is reasonable in all the circumstances.
To dismiss an employee because they have complained about or refused to work in unsafe working conditions could amount to automatically unfair dismissal, regardless of how long they have worked for you.
It is worth noting here that the employee would not need to show that serious and imminent danger actually existed, but simply that they held a reasonable belief that attending work would put them in such danger.
Once an automatically unfair reason for dismissal has been established, the employer will no longer be able to justify or defend their decision to dismiss in any way, as they could in a claim for ordinary unfair dismissal. The tribunal will have no cause to consider whether or not the employer acted reasonably in reaching this decision. The dismissal will simply be classed as automatically unfair and the employee will succeed in their claim.
If the claim for automatically unfair dismissal is successful, the employee will have a right to damages, and even reinstatement or re-engagement in a different job. The award of damages will comprise a basic and compensatory award.
The basic award is a fixed sum calculated applying a statutory formula based on the employee’s age at the date of dismissal, their gross weekly salary and their length of service, up to the relevant cap and maximum award level. This can be calculated as follows:
The compensatory award will reflect any loss of earnings, in addition to a sum of money to compensate for the loss of their statutory rights, ie; that it will take them two years in a new job to get the general right to claim for ordinary unfair dismissal, again up to the relevant cap.
However, there are certain claims for automatically unfair dismissal where the award is uncapped and, consequently, the compensation could be much higher. This includes if you dismissed an individual for taking action on health and safety grounds or because they ‘blew the whistle‘ for wrongdoing in the workplace, as well as where the dismissal amounts to unlawful discrimination.
DavidsonMorris’ employment lawyers can help with all aspects of workplace discrimination. Working closely with our specialists in HR, we can advise on positive steps to improve diversity and equality in your organisation, while minimising the legal risk of discrimination claims. For help and advice, speak to our experts.
To claim for unfair dismissal, an employee must have a two-year qualifying period of service. The employer may also be able to defend their decision to dismiss by showing that the reason itself was fair and that they acted reasonably in all the circumstances. In contrast, where the reason for dismissal is classed as automatically unfair, this will require no consideration of whether or not the employer acted reasonably, regardless of the employee’s length of service.
A dismissal will be classed as unfair if the reason the employer gives for the dismissal was not the real one, the reason was unfair or they acted unreasonably, for example, by failing to give the employee plenty of warning about their dismissal. If, on the other hand, the reason for the dismissal is one of several automatically unfair reasons, this will be classed as unfair in itself, without further consideration of whether or not the decision to dismiss was reasonable.
There are several reasons that can be classed as automatically unfair dismissal, typically where the decision to dismiss violates an individual’s basic statutory employment rights. This could include a reason connected to an employee’s pregnancy or maternity, or for asserting a right under either the Working Time or National Minimum Wage Regulations.
Last updated: 12 August 2023
