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Automatic unfair dismissal

View profile for Reggie Lloyd
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In most cases an employee must have acquired 2 years’ continuous service before they can make a claim for unfair dismissal. This is commonly known as “ordinary” unfair dismissal. However, there are over 25 exceptions to that rule where an employee can make a claim for “automatic unfair dismissal” without having 2 years’ service.

One of the exceptions is where the employee claims they were automatically unfairly dismissed for asserting a statutory right. These statutory rights include any right conferred on them by the Employment Rights Act 1996, the right to minimum notice; rights conferred by TUPE, TULRAC (regarding Trade Union activities) and rights conferred  by the Working Time Regulations.

To succeed in a claim for automatic unfair dismissal the employee must show they asserted statutory right and that was the reason for the dismissal.

In 1997 the Employment Appeal Tribunal in a case of Mennell v Newell indicated that an employee may be able to make a claim of automatic unfair dismissal for asserting a statutory right even though the right had not actually been infringed but the employer had threatened to infringe the right.

For example, if an employee had money unlawfully deducted from their wages and they complained about that and was dismissed, they could make a claim that they were automatically unfairly dismissed for asserting a statutory right i.e. the right not to have unlawful deductions made from their wages.

If the employee was told by their employer that the intention was to deduct money from their next pay packet and the employee complained about that and was dismissed, it was suggested in Mennell that the employee may be able to make a claim for automatic unfair dismissal, even though their statutory right had not actually been infringed, (because they were dismissed before the deduction was actually made).

However, a recent case of Spaceman v ISS Mediclean Limited makes it clear that an employee must show that they complained about an infringement that had actually occurred and a complaint that there may be an infringement of a statutory right at some point in the future is not sufficient. 

This decision makes it clear that in order for an employee to claim that they were automatically unfairly dismissed for asserting a statutory right, they must show they asserted that a statutory right had been breached. A complaint by an employee that a breach of a statutory right may or will occur in the future (which results in his dismissal), will not be sufficient.

If you would like more information on this topic, or have any employment issues you wish to discuss, please contact me. I am based at our Colchester office and can be contacted on 01206 217 347 or reggie.lloyd@birkettlong.co.uk.

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