Most unfair dismissal cases operate under the “normal” unfair dismissal rules – an employee (who has more than one year’s continuous employment) is unfairly dismissed by their employer for one of the “potentially fair” reasons (misconduct, capability, illegality, redundancy, or SOSR). “Normal” unfair dismissal cases are subject to a cap on compensation (currently £72,300 for the compensatory award) and there is the important hurdle of one year’s continuous employment to clear.
However, there are cases where there isn’t a cap on compensation and the one year’s continuous employment isn’t necessary. These cares are commonly referred to as “automatically unfair” dismissal. The rights conferred in “automatic unfair dismissal” cases all apply to employees and to some cases extend to workers. Although workers do not qualify to pursue their employer for the right of unfair dismissal under the Employment Rights Act 1996 they can attempt to obtain redress from their employer if they are subject to a detriment for seeking to exercise certain rights. A detriment can include dismissal (and can also include post-termination detriments such as the giving of a bad reference). So, employees are protected from unfair dismissal and detriment for exercising the rights protected under the “automatic unfair dismissal” rules, and workers are protected from being subjected to a detriment (which can, confusingly, include being dismissed).
There are a specified number of cases in which the “relaxations” applying to automatic unfair dismissal apply. The cases where there is no need for one year’s continuous employment are listed below (among others):
- Dismissal or detriment connected to pregnancy or maternity
- Dismissal or detriment connected to the taking of leave for family reasons
- Dismissal or detriment connected to the exercising of rights under the Part Time Worker Regulations 2000
- Dismissal or detriment connected to the exercising of rights under the Fixed Term Employees Regulations 2002
- Dismissal or detriment connected to an application for flexible working
- Dismissal or detriment connected to health and safety reasons (such as the highlighting of the potential for an accident at work)
- Dismissal or detriment connected to Trade Union membership and/or representation
- Dismissal or detriment connected to exercising rights relating to grievance and disciplinary hearings in the workplace
- Dismissal or detriment connected to shop or betting workers refusing to work on a Sunday
- Dismissal or detriment connected to making a protected disclosure under the Protected Disclosure Act 1998
- Dismissal or detriment connected to unlawful discrimination under the Equality Act 2010
The cases where there is a requirement of at least one year’s service include:
- Dismissal where the sole or principal reason for the dismissal is a TUPE transfer or for a reason connected with the transfer which does not fall inside the ETO exceptions
- Dismissal by reason of retirement
- Dismissal because your employer finds out about a spent conviction
Let’s take a hypothetical example from above to explain automatic unfair dismissal in a bit more detail. Annette started work at her employer 2 months ago in January 2011 and finds out she is pregnant. She takes Ordinary Maternity Leave (“OML”) and is due under her OML to return to work on 30 November 2011. However, she is not notified by her employer, Ben, that she is to return to work on the 30 November 2011 and therefore does not return on that date. Ben, being extremely annoyed about this, fires her. Although Annette wouldn’t normally be entitled to claim “normal” unfair dismissal in the circumstances (because she wouldn’t have the necessary one year’s employment) she could claim automatic unfair dismissal because her dismissal was connected with her maternity leave.