Shedding light on Tribunals and Unfair dismissal – part 2

Automatically Unfair Dismissal

There are certain reasons the law believes to be completely unfair to the employee regardless of what has happened in the course of their employment, essentially it is wholly illegal to dismiss someone for any of the reasons below and in this category it doesn’t matter how long an employee has worked for an employer.
Pregnancy – this covers everything to do with maternity, it is automatically unfair to dismiss a woman because she becomes pregnant. It’s not unheard of to mask a dismissal for pregnancy with some other reason for example poor performance, however this is never wise and tribunals are well versed and getting to the truth. Under section 4 of the Equality Act 2010 pregnancy is a “protected characteristic” meaning it is illegal to discriminate against a woman because she is pregnant, further pregnant woman have the right not to be dismissed because they are pregnant under section 99 of the Employment Rights Act 1996. 
Enforcement of a statutory right – this means an employee should not be dismissed for trying to enforce a right afforded to them by law. If for example an employee was dismissed because he/she was disputing annual leave (which they are entitled to by law) then this would be automatically unfair. A list of statutory rights can be found on the Citizens Advice website.
Health and safety issues – An employee cannot be dismissed for raising a health and safety issue with the employer or taking action because of it. An example might be dismissing an employee for refusing to use faulty or dangerous equipment.
Whistle blowing – This area is not as clear as others however generally speaking in order for an automatically unfair dismissal to have taken place the information disclosed must be in the public interest. This means that the whistle blowing must be on something that is likely to affect other people e.g. the general public.
What is considered whistle blowing?

  • A criminal offence being committed by the employer e.g. fraud
  • A miscarriage of justice
  • Illegal conduct or omissions by the company
  • Damage to the environment of a risk of this happening
  • A persons health and safety is in danger

Other Types of Unfair Dismissal

Misconduct – If an employer dismisses an employee for misconduct in their employment this can be particularly hard to challenge. The tribunal will apply a number of legal tests to a case to establish whether the employer fairly dismissed an employee for mis conduct, these are questions the tribunal will ask itself when coming to a decision:

  • Did the employer have a genuine belief that the employee was guilty of misconduct?
  • Was there reasonable grounds for the employer to believe the employee was guilty of misconduct?
  • Did a full and proper investigation into the alleged misconduct take place?
  • Was the dismissal a reasonable response to the misconduct?

Redundancy – Sometimes it is necessary to make people redundant in the workplace, however the tribunal will apply the following legal tests to establish whether making an employee redundant is fair:

  •  Was there a genuine need to make redundancies?
  • Was the decision to select the employee is question fair?
  • Was there a fair process of selection and consultation?
  • Were reasonable efforts made to find the employee employment elsewhere in the organisation?

Long term sickness – Where an employee has been off sick for a considerable amount of time it may be fair for the employer to dismiss them, however this must be done in a fair and legal way. The tribunal will apply the following tests:

  • Did the employer consult the employee before deciding to dismiss them?
  • Was a proper investigation into the employee’s sickness/illness conducted?
  • Is it likely the employee could have returned to work?
  • Were other ways of getting the employee back to work explored?

This article does not cover all aspects of tribunals and employers should seek the appropriate advice if they are being taken to tribunal or believe it is likely they will be.
Tercus HR specialises in providing consultation to employers before, during and after a tribunal and can advise on all aspects of proceedings. For more information contact us on 0330 555 1139 or email You can also follow us on Twitter and connect to us on LinkedIn for regular HR insights.
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