Official ‘Lawful’ Industrial Action

An automatic unfair dismissal would occur if you fire someone for participating in lawful industrial action:

• During a 12-week period from the start date of the industrial action.
• After the 12-week period if you failed to take reasonable steps to solve a work dispute.

Note: Only a tribunal can determine whether you took reasonable steps to resolve the dispute.

You may decide to ‘lock out‘ your employees for taking industrial action. Locking them out means you prevent them from accessing their usual workplace.

As a rule you can achieve a lock-out by locking the doors. But, you cannot include any days of the lock-out into the calculation of the 12-week protected period.

---

Automatically Unfair Reasons for Dismissal

• Dismissal for a certain trade union related reason.
• Dismissal for asserting a statutory right (e.g. objection to illegal deduction from wages or insisting on any of his statutory rights under the Employment Rights Act 1996).
• Dismissal for a workplace health and safety related reason (e.g. refusing to operate dangerous machinery).
• Dismissal for a maternity related reason (e.g. sacked when she tells employer she is pregnant).
• Dismissal in connection with function as a pension scheme trustee.
• Dismissal in connection with performing a function as an employee representative or a special negotiating body or European Works Council etc.
• Dismissal in connection with refusal of Sunday work by a shop worker.
• Dismissal in connection with working time (e.g. someone who asks to take annual leave or breaks or refuses to opt out of the 48 hour week).
• Dismissal in connection with assertion of right to the National Minimum Wage.
• Dismissal in connection with making a protected disclosure (e.g. whistleblowing).
• Dismissal in connection with trade union recognition or bargaining arrangements.
• Dismissal in connection with exercising the right to be accompanied to a disciplinary or grievance hearing.
• Dismissal in connection with taking part in protected industrial action (e.g. official strikes).
• Dismissal because of taking time off for dependants or paternity or parental leave.
• Dismissal because of action related to part time workers rights.
• Dismissal in connection with a person’s rights as a fixed term employee.
• Selection for dismissal by way of redundancy because of an automatically unfair reason.
• Dismissal in connection with Tax Credits or a claim for the same.
• Dismissal for being absent on jury service or because the employee got summoned for jury service.
• Dismissal for asserting a right to apply for flexible working.
• Dismissal for asserting a right to apply for time off for study or training.
• Dismissal because of a TUPE transfer or a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes in the workforce.
• Dismissal because of a spent conviction.
• Dismissal for exercising rights under the Agency Workers Regulations 2010.
• Dismissal for refusal to accept an offer by the employer to become an employee shareholder (See Section 205A ERA 1996).

---

Qualifying Continuous Employment

All of the above qualify as an automatic unfair dismissal. In most of these cases an employee does not need to have a period of qualifying continuous employment except for:

• Dismissal in connection with a TUPE transfer.
• Dismissal because of a spent conviction.
• Dismissal in connection with an application for flexible working. (But they will give rise to an automatic unfair dismissal if they are shown to be the reason for dismissal of someone qualified to claim).

---