Automatic unfair is one to be aware of

Facing an unfair dismissal claim can be a daunting prospect for an employer, but an allegation of ‘automatically unfair dismissal’ adds a further dimension to such cases, as specialist Fiona Gorry explains

Fiona Gorry

by Fiona Gorry

Dentons associate Fiona Gorry has more than seven year’s experience providing strategic and commercial employment law and HR advice to a wide range of employers across the UK.

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What is an ‘automatically unfair dismissal’?

In addition to protection from ordinary unfair dismissal, legislation protects employees from “automatically” unfair dismissals. An automatically unfair dismissal occurs where the reason for an employee’s dismissal is one prohibited by statute. 

These prohibited reasons include the following:

  • Reasons connected with pregnancy, childbirth, statutory maternity leave or other family friendly rights;
  • A health and safety reason;
  • If a shop or betting worker refuses to work on a Sunday;
  • A reason connected with rights under the Working Time Regulations 1998;
  • For acting as an employee representative on a TUPE transfer or collective redundancy;
  • For making a protected disclosure;
  • For making an application for flexible working.

There are also other prohibited reasons.

Does this only apply after an employee has two years’ service

No. In the majority of cases, an employee who claims to have been automatically unfairly dismissed does not need two years’ service – the protection applies from the first day of employment.

This means that if you dismiss an employee, who has only been with you for a matter of months and may still be within their probationary period, for refusing to work in the shop on a Sunday or because they have submitted an application for flexible working, the employee could raise a claim for automatic unfair dismissal.

Additionally, if the reason for dismissal is protected, the reasonableness test, which applies to ordinary unfair dismissal cases is not relevant. If the reason or principal reason for dismissal is one prohibited by statute, the dismissal will always be unfair.

Are there any recent rulings on automatically unfair dismissals?

Yes, in Spaceman v ISS Mediclean Ltd t/a ISS Facility Service Healthcare, the Employment Appeal Tribunal (EAT) was asked to consider whether a claimant was automatically unfairly dismissed for raising issues around the fairness of the disciplinary process followed before his summary dismissal.

Mr Spaceman did not have the service to raise an ordinary unfair dismissal claim. He therefore argued that he had been dismissed for raising concerns that his statutory rights (here the right not to be unfairly dismissed) were being infringed.

During a disciplinary hearing Mr Spaceman alleged that a colleague had been told he was going to be dismissed before the hearing started; and the disciplinary officer had been told to dismiss him.

An Employment Judge rejected the claim, as the allegation related to a potential breach which hadn’t yet happened. In the view of the judge, for such claims to succeed, the allegation must be that the statutory right has already been infringed, not that there might be a future infringement. On appeal the EAT agreed with this approach and rejected the claim.

What are the lessons?

While Mr Spaceman was unsuccessful, employees do have some protections from the start. Therefore, the next time you’re chairing a disciplinary hearing because an employee has not followed proper waste procedures or because stock has not been rotated properly, do not assume it is safe to dismiss just because they have less than two years’ service. If the employee raises issues during a hearing, this should be adjourned and the issues investigated before a decision is made.

Do you have a business, property or legal question or issue that you would like to know more about?

Contact Scottish Grocer and we’ll put it to an expert. Call Matthew Lynas on 0141 567 6074 or email matthew.lynas@peeblesmedia.com