Don’t fall into the trap of thinking that all unfair dismissal claims need two years’ continuous employment. Certain cases need no qualifying period of employment. These are called automatically unfair reasons for dismissal.
To date there are 29 reasons for automatically unfair reasons for dismissal
- because the employee was, or proposed to become, a member of an independent trade union, or because the employee refused to become, or to remain, a member of an independent trade union, or where the employee was dismissed for having taken, or having proposed to take, part in the activities of an independent trade union, either outside working hours or within working hours if permitted by the employer
- because the employee participated in official industrial action in certain circumstances
- as a result of pressure from a trade union, by way of the threat of industrial action
- a reason connected with the performance by an employee representative, or a candidate in an election for representatives, or of their function as such an employee representative or candidate, on a transfer of an undertaking (TUPE) or where the employer proposed to make collective redundancies
- for a reason related to the employer contravening the rules prohibiting the compilation, use, sale or supply of blacklists of trade union members or activists
- the assertion of a statutory right, for example, the employee asserted their right to receive a written statement of particulars of employment or not to have unlawful deductions made from their wages
- a health and safety-related reason, for example, where they brought to the attention of their employer a concern over a risk to health and safety, or where they proposed to leave, or left, the workplace and refused to return while danger persisted, in the event that they reasonably believed their well-being was in serious and imminent danger and this could not reasonably be averted, or where, in these circumstances, they took appropriate steps to protect themselves or others from danger
- a pregnancy or maternity-related reason
- because the employee took, or sought to take, parental leave, paternity leave, adoption leave, time off to deal with family emergencies involving a dependant or shared parental leave
- because the employee exercised, or sought to exercise, their statutory right to time off to accompany a pregnant woman to an antenatal appointment
- because the employee exercised, or sought to exercise, their statutory right to time off to attend an adoption appointment
- because the employee made, or proposed to make, an application to work flexibly under the statutory right to request flexible working arrangements
- for a reason connected with the employee’s rights under the national minimum wage (NMW) legislation
- for a reason connected with the employee’s rights, or their refusal to forgo a right, under the Working Time Regulations 1998, for example, the right to paid annual leave or the right to refuse to work on average more than 48 hours per week
- a reason connected with the performance by the employee who is a pension scheme trustee of their functions as such a trustee
- a reason connected with the refusal of Sunday work by a shop worker or betting worker
- a reason connected with the employee making a whistleblowing protected disclosure under the Public Interest Disclosure Act 1998
- a reason connected with trade union recognition or bargaining arrangements
- because the employee exercised, or sought to exercise, their statutory right to be accompanied to a disciplinary or grievance hearing or to another meeting where the statutory right to be accompanied applies, or because the employee accompanied, or sought to accompany, another worker to such a hearing or meeting
- because the employee took, or proposed to take, action with a view to enforcing or securing the benefit of working tax credit
- because the part-time employee exercised, or sought to exercise, their rights under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000
- because the fixed-term employee exercised, or sought to exercise, their rights under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002
- as a result of the employee being summoned for, or being absent from work to attend, jury service, in certain circumstances
- because the employee exercised, or sought to exercise, their statutory right to paid time off for study or training, where it applies
- because the employee made, or proposed to make, an application for time off work for the purposes of study or training under the statutory right to request time to train, or they exercised a right under the time to train procedure, where it applies
- as a result of the employee taking action to enforce the requirements imposed on employers under the Pensions Acts 2008 and 2011 relating to the automatic enrolment of eligible workers into a qualifying workplace pension scheme
- because the employee refused to accept an offer by their employer for them to become an employee shareholder
- because the zero-hours employee breached an unenforceable exclusivity clause in their zero-hours contract
- a selection for redundancy for a reason which would have been automatically unfair if it had been the reason for dismissal.
Also bear in mind that where the reason for the employee’s dismissal is, or relates to, their political opinions or affiliation, or is connected with the employee’s membership of the reserve forces, the employee does not need to have a qualifying period of employment in order to bring a claim for unfair dismissal. Unlike the automatically unfair reasons for dismissal listed above, a dismissal on the basis of political opinions or affiliation, or membership of the reserve forces, is not automatically unfair – but it permits an unfair dismissal claim to be heard on normal principles without the need for the employee to have a qualifying period of employment.
If you have a difficult situation in the workplace give us a call now on 01706 565332. We can help you think through the best way forward.
Metis HR is a professional HR Consultancy based in the North West of England supporting clients across the country. We specialise in providing outsourced HR services to small and medium-sized businesses. Call us now on 01706 565332 to discuss how we may help you.