Automatic unfair dismissal

In some cases a dismissal will be treated as unfair by establishing a link between the dismissal and specific behaviour by the employee. It usually applies where the law is protecting an employee from applying their employment rights.

The normal period of qualifying service is not required for a claim of automatic unfair dismissal.

There is now a long list of protections for automatic unfair dismissal:


  • related to pregnancy, childbirth, maternity leave, parental leave or taking time off (as defined in s57A ERA 1996) to care for dependants.
  • related to health and safety matters falling within s100 ERA 1996.
  • Related to the assertion of statutory rights as set out in s104 ERA 1996 (including the right not to have deductions made from wages)
  • related to the enforcement of the Working Time Regulations as set out in s101A ERA 1996.
  • related to “whistle blowing” by the employee (s103A ERA 1996)
  • related to national minimum wage claims falling within s104A ERA.
  • Dismissals of occupational pension scheme trustees falling within s102 ERA 1996.
  • Dismissals of certain employee representatives (e.g. those elected for consultation about mass redundancies) falling within s103 ERA 1996.
  • dismissal of certain shop and betting workers who refuse to work on Sundays, as set out in s101 ERA 1996.
  • related to trade union activities and membership (as defined in s152 of the TULRCA 1992).
  • Dismissals relating to the claiming of tax credits as set out in s104B ERA 1996.
  • Dismissals arising out of suspension on medical grounds as defined in s64(2) ERA 1996– the qualifying period here is one month.
  • Dismissal (in defined circumstances) while taking part in official industrial action: s238A TULRCA 1992
  • Dismissals where the worker exercised, or sought to exercise, the right to be accompanied (or accompanied another worker) under Sec.10 ERA 1999.
  • Dismissals of part-time workers under s108(i) ERA 1996


Note- a selection for redundancy based on the above exceptions is automatically unfair and also requires no qualifying period.


Note – although a dismissal related to a business transfer is automatically unfair, one years’ qualifying service is still required.

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