When is a dismissal is automatically unfair?

Reviewed by Louise Paull, employment solicitor, LawBite

Business manger pointing to a door to dismiss an employee

There will automatically be a finding of unfair dismissal against you, if you sack an employee for any of the reasons below. Their age, or their length of service is immaterial

  1. Taking, or seeking to take, leave for family reasons including pregnancy, maternity leave, paternity leave, adoption leave, childbirth and parental leave;

  2. Taking leave for family emergencies or to care for dependants;

  3. Taking, or seeking to take, time off for antenatal or adoption appointments;

  4. Performing certain health and safety activities;

  5. Refusal of Sunday working by shop and betting employees;

  6. Refusal to perform certain activities that would breach the Working Time Regulations;

  7. Performing certain functions as a trustee of an occupational pension scheme;

  8. Performing certain functions as an employee representative under the TUPE or collective redundancies legislation;

  9. Making a protected disclosure (ie whistleblowing);

  10. Asserting certain statutory rights;

  11. Seeking to exercise the right to be accompanied or to accompany a fellow worker at a disciplinary and grievance hearing;

  12. Taking certain steps under the National Minimum Wage Act 1998;

  13. Seeking to exercise the right to flexible working;

  14. Because they are a part-time worker;

  15. Because a zero hours worker works for other employers;

  16. Participating in ‘protected’ industrial action;

  17. Performing certain functions in relation to trade union recognition;

  18. Participation in trade union membership or activities;

  19. Exercising rights relating to fixed-term working;

  20. Undertaking jury service;

  21. Carrying out pension auto-enrolment obligations for an employee.

There will also automatically be a finding of unfair dismissal against you, if an employee can prove to an Employment Tribunal’s satisfaction that you selected them for redundancy for any of the above reasons.

This list is not exhaustive. If you are considering dismissing anyone who might be able to attribute your action to any of the above causes, you are strongly advised to take legal advice first.

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