What is the Definition of Automatic Unfair Dismissal 

Automatically Unfair Dismissal

Automatic unfair dismissal refers to a situation where an employee is dismissed by their employer for reasons that are deemed automatically unfair by employment law. These reasons are outlined in legislation and include factors such as pregnancy, maternity leave, exercising certain statutory rights, or whistleblowing. The concept of automatically unfair dismissal aims to protect employees from being unfairly targeted or punished by their employers for engaging in activities that are legally protected. Examples include:

1. ERA section 100 – complaints about health and safety, refusing to work because of health and safety concerns.  No upper limit on compensation.

2. ERA section 103A – protected disclosure.  This is where an employee ‘blows the whistle’ on misconduct by others or things happening in the workplace that constitute illegality.

3. ERA section 104 – asserting a statutory right.

4. ERA section 108(4) - political opinions or affiliation. Introduced after the Redfearn v UK decision of the ECtHR.  Redfearn had not been discriminated against, but his Article 11 freedom of association rights had been infringed.  ECtHR did not hold that dismissal for this reason could never be justified, but Redfearn had no way of challenging the dismissal because he did not have the two years’ qualifying period.  The two-year period does not apply where the reason or principal reason for dismissal relates to the employee’s political opinion or affiliation.  But this is not automatic unfair dismissal.

Automatically Unfair Reasons

The employer is always likely to argue one of the five potentially fair reasons.  However, the employee may contend that his/her dismissal was actually due to another reason.  Suppose the employee is able to successfully prove that his/her dismissal was due to one of the reasons listed below. In that case, the unfair dismissal claim will succeed at that point, and the tribunal will not consider the second limb of the unfair dismissal test, namely whether the dismissal was fair in all the circumstances. The following reasons are treated as ‘automatically unfair’:

• Relating to pregnancy or maternity

• Relating to other family-friendly rights, including adoption and paternity leave

• Relating to the role of a health and safety representative

• Relating to the role of an employee representative

• Being a trade union member or taking part in trade union activities

• Asserting a right under the Working Time Regulations 1998

• Exercising the right to be accompanied to a disciplinary or grievance meeting

• Making a protected disclosure

• Asserting a statutory right

• Requesting flexible working

• Exercising rights as a fixed-term worker

• Exercising rights as an agency worker

• Relating to part-time status

• Insisting on being paid the minimum wage

• Attending jury service

• Being selected for redundancy for any of the above reasons

• Following a TUPE transfer where there is no economic, technical or organisational reason entailing a change in the workforce

• For a spent conviction or failure to disclose one

For most of the automatically unfair reasons, no period of continuous employment is required, except the last two on the list. Thus, two years’ continuous employment is not needed, and the employer cannot justify dismissal. 

Remedies and Compensation in Automatically Unfair Dismissal

When an employment tribunal finds a dismissal to be automatically unfair, it can order reinstatement, re-engagement, or, most commonly, compensation.

Compensatory Award and Statutory Cap

For most automatically unfair dismissals, the compensatory award is subject to a statutory upper limit or "cap". However, this cap does not apply to dismissals that are automatically unfair due to whistleblowing or health and safety reasons. If an additional award is made for non-compliance with a reinstatement or re-engagement order, the statutory cap on the compensatory award can also be exceeded.

Interim Relief

A significant remedy available in a very limited category of automatically unfair dismissals is interim relief. This remedy allows an employment tribunal to grant an order requiring the employer to continue paying the former employee's salary and benefits from the date of termination until the final determination or settlement of their claim. Interim relief is primarily available in cases alleging dismissal for whistleblowing claims and trade union membership or activities.

To grant interim relief, the tribunal must decide, at an interim hearing, that the claimant is "likely" to win at the full hearing. "Likely" in this context means having a "pretty good chance" or looking "like a winner". An application for interim relief must be made before the end of the seventh day following the effective date of termination (EDT), or during the notice period if dismissal was with notice. Interim relief is rarely sought and even more rarely granted.

If interim relief is granted, and the employer is unwilling to reinstate or re-engage the employee, an order for the continuation of the contract will be made. This means the employee continues to receive salary and benefits, retains seniority, and accrues continuity of service, but is not obliged to carry out any work for the employer. Monies paid under a continuation order cannot be recovered by the employer even if the claim ultimately fails. The Labour government had consulted on expanding the categories for interim relief but ultimately decided not to proceed with these changes.

Acas Code of Practice

While the Acas Code primarily applies to misconduct and poor performance dismissals, it can also be relevant in some automatically unfair dismissal cases. For instance, the disciplinary provisions of the Acas Code have been held to apply where a claimant was unfairly dismissed for making a protected disclosure, as such a dismissal involves an allegation of culpable conduct requiring "correction or punishment". Unreasonable failure to follow the Acas Code can lead to an increase in the compensatory award by up to 25%.

Basic Award

In automatic unfair dismissal cases, the basic award is calculated in the usual way (based on age, length of service, and a week's pay), but the employee does not need to have two years' service to be entitled to it. For certain automatically unfair reasons, such as carrying out health and safety activities or being a trade union representative, a minimum basic award is set. A reduction for contributory fault to the compensatory award is generally possible in automatically unfair dismissal cases, unless the reason for dismissal relates to industrial action or trade union membership/activities