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Employment tribunals - automatic unfair dismissal - trying to assert a statutory right

This advice applies to Wales

When a tribunal looks at your claim for dismissal, there are certain legal tests they will apply. You can't normally make a claim to an employment tribunal for unfair dismissal until you've been working for your employer for at least 2 years.

However, there are some reasons for dismissal which a tribunal will decide are automatically unfair. If you're dismissed for one of these reasons, you can still make a claim to a tribunal, regardless of how long you've worked for your employer.

Statutory employment rights are given to workers and employees by Acts of Parliament rather than through a contract of employment. Asking for what you're entitled to by law is called asserting a statutory right. If you've been dismissed for trying to exercise a right, you can make a claim for automatic unfair dismissal.

This page tells you more about what you can do if you're dismissed for trying to assert a statutory right.

What are your statutory employment rights?

If you can show a tribunal that the main or only reason that you've been dismissed was because you've tried to assert a statutory right, your dismissal will be automatically unfair.

It doesn't matter whether you actually had the statutory right or not, or whether it was actually infringed. If you genuinely believed you had that right and you were dismissed because you asked for it, you can make a claim.

For example, it's automatically unfair if you're dismissed because you asked:

  • for a written statement of your terms of employment - you should get this by the day you start work
  • to work a maximum of 48 hours each week
  • for weekly and daily rest breaks
  • for some types of family or care leave - for example, paternity leave
  • to work part-time or flexibly
  • to take paid holiday

You also have statutory rights for your pay. It’s automatically unfair if you’re dismissed because you asked:

  • for an itemised pay slip
  • to be paid at least the National Minimum Wage
  • not to have illegal deductions made from your pay

Do you have to tell your employer which right you're trying to assert?

A tribunal won't expect you to know exactly what right under which section of employment law you are trying to assert. However, to be protected you must have made it clear to your employer which statutory right you asked for.

For example, a tribunal won't expect you to have asked your employer for paid holiday under the Working Time Regulations 1998, but they will expect you to have asked for paid holiday.

When you ask your employer for something you have a statutory right to, it’s best to put it in writing. Make sure your request is polite and you describe clearly what you’re asking for - this will help your case if you go to an employment tribunal later.

How can you prove your dismissal was for trying to assert a statutory right?

When the tribunal is deciding whether your dismissal was for trying to assert a statutory right, they will look at why you acted as you did, and why your employer acted as they did.

You may find it difficult to prove the link between you trying to assert your right and your dismissal. An employer will usually give another reason for dismissing you and tribunals have tended to be reluctant to find that the dismissal is for a reason that is automatically unfair.

It's important you can provide evidence that you've tried to assert a statutory right, such as phone call records or written requests to your employer. If you can show this, a tribunal will expect your employer to be also able to provide evidence for what they are saying is the reason for your dismissal.

For example, if you claim you've been dismissed for not being given proper rest breaks you'll need to show evidence to prove this. If your employer says the real reason for your dismissal is poor performance, they will have to provide evidence, such as poor appraisal records or documents to show you've been performance managed for this reason. If they can't do this and your evidence is stronger, you're more likely to win your claim.

Example

Fiona, a single parent with two children, was employed by E Ltd as a care home manager. Her salary was paid on the first day of every month. If it was late, she couldn't pay for her childcare. On 1 March, her wages weren't paid. Non-payment of wages when they are due counts as an unlawful deduction from wages.

Over the next two days, she made many phone calls to E Ltd’s head office trying to obtain payment and an explanation as to why she hadn't been paid on time. On 3 March she couldn't go to work, as she couldn't pay for childcare. She was finally paid on 4 March. She took some days off sick because her financial difficulties caused by the late payment of her wages had led to her becoming depressed.

She returned to work on 10 March, and was dismissed on that day with her employer saying the reason for her dismissal was that she had not followed the proper procedure when reporting her absences from work. She claimed she had been automatically dismissed for trying to assert her statutory right of not having unlawful deductions made from her pay.

The tribunal decided that her employer's argument for dismissing her was not supported by the evidence. It went on to decide that she had been dismissed for asserting her statutory right, because she could show that she had made numerous phone calls complaining that she hadn't been paid. The records helped to prove that this was an automatic unfair dismissal.

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