Understanding Automatic Unfair Dismissal: Your Rights When Dismissed for Asserting a Statutory Right
Disclaimer: This Article is Not Legal Advice
This article is designed to give you a general understanding of the context of Automatic Unfair Dismissal within the Employment Rights Act 1996. However, please remember that this is not legal advice. Every situation is different, so it is important to obtain personalised advice from a qualified legal expert for your particular circumstances. This article is for information only and should not replace professional legal advice.
Introduction
If you are an employee who believes you have been unfairly dismissed from your job but are worried about the requirement of having worked for two years to bring a claim before an Employment Tribunal, this article is for you. We will discuss Automatic Unfair Dismissal as prescribed by the Employment Rights Act 1996, focusing on dismissal for asserting a statutory right.
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:
- Ordinary Unfair Dismissal
- Automatic Unfair Dismissal
Ordinary Unfair Dismissal
To bring a claim for Ordinary Unfair Dismissal, you must have been continuously employed by your employer for at least two years. In these cases, the dismissal is assessed based on two key aspects:
- 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 either the reason for dismissal or the procedure followed is found to be unfair, the dismissal may be deemed unfair by an Employment Tribunal.
Automatic Unfair Dismissal
Automatic Unfair Dismissal occurs when an employee is dismissed for a reason that is automatically considered unfair by law, as specified in the Employment Rights Act 1996. In most cases, the usual requirement of two years of continuous employment does not apply. 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:
- Bringing Proceedings: If you have taken legal action against your employer to enforce statutory rights, such as claiming unpaid wages, and are dismissed because of it.
- Making an Allegation: If you have alleged that your employer has infringed a statutory right, like complaining about not receiving holiday pay, and are dismissed as a result.
It is important that when you allege a statutory right has been infringed, you make it reasonably clear to your employer, even if you don’t specify the exact right. For example, saying, “I’m concerned about my late salary payments,” can be enough to indicate that you believe your right to timely payment is being 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. However, if the dismissal is for an automatically unfair reason (like asserting a statutory right), it is deemed unfair regardless of the employer’s justification.
- Procedural Fairness: While employers are generally expected to follow fair procedures, in automatic unfair dismissal cases, even a fair procedure does not make the dismissal fair if the reason itself is automatically unfair.
Conclusion
Understanding your rights as an employee is crucial. If you’ve been dismissed for asserting a statutory right, you may have grounds for an Automatic Unfair Dismissal claim without needing two years of service. Remember, in such cases, the dismissal is considered unfair regardless of the procedures followed by the employer. Always seek professional advice to protect your rights.
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