Understanding Automatic Unfair Dismissal: Your Rights When Dismissed for Asserting a Statutory Right

Baher Saleh
International Associate

Disclaimer: This Article is Not Legal Advice

This article explains the context of Automatic Unfair Dismissal under the Employment Rights Act 1996. However, please remember that this is not legal advice. Because every case differs, seek personalised advice from a qualified legal expert for your specific situation. This article is for information only and should not replace professional legal advice.

Introduction

Employees who believe their employer unfairly dismissed them but haven’t worked for two years often worry they can’t bring a claim. This article is for you. We explain Automatic Unfair Dismissal under the Employment Rights Act, focusing on dismissals for asserting statutory rights.

Understanding Unfair Dismissal

In employment law, unfair dismissal occurs when an employer terminates an employee’s contract without a fair reason or without following the correct procedure. There are two main types of unfair dismissal:

1. Ordinary Unfair Dismissal
2. Automatic Unfair Dismissal

Ordinary Unfair Dismissal

You need at least two years of continuous employment with your employer to bring a claim for Ordinary Unfair Dismissal. In these cases, the tribunal examines two key aspects of the dismissal:

• Substantive Fairness: This refers to whether the employer had a fair reason for dismissing you. Acceptable reasons include, for example, misconduct or lack of capability.
  
• Procedural Fairness: This concerns the process your employer followed in dismissing you. They must follow a fair and reasonable procedure, which typically involves investigating the matter, informing you of the issues, allowing you to respond, and giving you the opportunity to appeal the decision.

If an employer uses an unfair reason or procedure, the Employment Tribunal can rule the dismissal unfair.

Automatic Unfair Dismissal

The law considers dismissal for reasons in the Employment Rights Act automatically unfair, bypassing the two-year rule.
Examples of automatically unfair reasons include:

• Dismissal for pregnancy or maternity-related reasons
• Dismissal for asserting a statutory right
• Dismissal related to trade union membership or activities
• Dismissal for whistleblowing

Dismissal for Asserting a Statutory Right

One of the most common grounds for Automatic Unfair Dismissal is dismissal for asserting a statutory right. Section 104(1) of the Employment Rights Act 1996 states:

“An employee who is dismissed shall be regarded… as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee:

(a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right; or

(b) alleged that the employer had infringed a right of his which is a relevant statutory right.”

This means there are two ways you can make a claim under this section:

1. Bringing Proceedings:
   Being dismissed for taking legal action to enforce statutory rights, like claiming unpaid wages, is automatically unfair.
   
2. Making an Allegation:
   Dismissal for alleging a breach of statutory rights, such as unpaid holiday pay, counts as automatic unfair dismissal.

Clearly tell your employer about concerns, even without naming the right, to show a statutory right infringement.
Saying, “I’m concerned about late salary payments,” can show you believe your right to timely pay is violated.

In some cases, courts have held that even indirect references can suffice. For instance, the Employment Appeal Tribunal found that an employee had done enough to make it clear that a statutory right was being infringed, even though he only mentioned moral and contractual issues.

It is worth noting that in cases of Automatic Unfair Dismissal, the usual tests of procedural and substantive fairness apply differently.

• Substantive Fairness: Normally, employers must have a fair reason for dismissal. Dismissal for an automatically unfair reason, like asserting a statutory right, counts as unfair despite the employer’s justification.
  
• Procedural Fairness: Even if employers follow fair procedures, dismissal for an automatically unfair reason remains unfair.

Conclusion

Understanding your rights as an employee is crucial.If your employer dismissed you for asserting a statutory right, you can bring an Automatic Unfair Dismissal claim even if you haven’t worked there for two years. In these cases, the law treats the dismissal as unfair no matter what procedure the employer followed.Always seek professional advice to protect your rights.

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