Automatically Unfair Dismissal Definition (s104 ERA 1996) — anchored to Stone v Burflex (Scaffolding) Ltd (EAT, 2021)

William Slivinsky
Sep 25
6 min read

Updated: Sep 26

Automatically Unfair Dismissal Definition - a dismissal is automatically unfair if the principal reason you were sacked is that you alleged your employer infringed a relevant statutory right (or you brought proceedings to enforce it). You don’t need two years’ service, and it doesn’t matter whether you were ultimately right about the entitlement—so long as you asserted it in good faith and made it reasonably clear what right you were talking about.

Section 104 gives a variety of statutory rights you can assert and get protection within ERA 1996, however, in this article, we focus on Mr. Stone's case: the right to not suffer unauthorized deduction. He asserted section 13 and 23, but the same could be used for any other section within the act, e.g., section 1 written particulars of your contract of employment and 8 detailed payslips, both also relevant to the issue of underpayment. These are only examples because we anchor it to Mr. Stone's case.

Automatically Unfair Dismissal Definition - what you will learn.

Case snapshot: Showing you the power of a written assertion of your rights as the first step, given it's structured correctly, will save your case.

One-paragraph definition: Section 104 ERA 1996, your protection against automatically unfair dismissal explained in plain language.

The test you must meet: what you must have done to gain protection under section 104 in the context of your right not to suffer unauthorized deductions and obtain a written contract of employment and detailed payslip.

5-question roadmap: core questions to establish if your case is well-founded, needs improvement or revisiting, or if the issue is currently ongoing, how to protect your best results.

Pleading Kit: Short pleadings you can use in your tribunal claim form copy-paste.

Evidence pack checklist: learn what evidence you need to gather.

Grievance template: copy and paste short templates for you to expand and use in your case.

Pitfalls & How to Avoid Them: Learn How to Avoid Common Pitfalls.

Questions: ask questions in the comments if this is something you have been through or are currently going through but are not sure what to do.

Case snapshot: Stone v Burflex (Scaffolding) Ltd (EAT, 22 June 2021)

Mr Stone put his concern in writing: a short, plain letter saying his wages looked short and his holiday pay hadn’t been worked out properly. He turned up to a meeting about it the very next day. Not long after that, the company let him go.

At tribunal, the judge accepted there was a dismissal but said this wasn’t the s104 situation Mr Stone claimed. In the judge’s view, his letter didn’t really amount to asserting a legal right about wages, and the dismissal supposedly happened for another reason—something to do with work drying up and a previously offered role being taken off the table.

On appeal, His Honour Judge Shanks at the EAT said that analysis didn’t hold up. The letter did exactly what s104 is about: it alleged an underpayment—the classic wages right under section 13. The EAT also pointed out a bigger problem: the tribunal had effectively chosen a “main reason” for the dismissal that neither side had actually argued, and it hadn’t asked the crucial follow-up—why was that alternative work suddenly withdrawn? In other words, if the work vanished right after the pay complaint, you at least have to test whether the complaint was the real trigger.

One-paragraph definition: s104 “assertion of a statutory right”

Your dismissal is automatically unfair if the reason, or main reason, is that you brought proceedings to enforce a relevant statutory right or you alleged the employer infringed such a right. Under s104(2), it doesn’t matter whether you were ultimately right—protection still applies if you alleged an infringement in good faith and made it reasonably clear which right was in play, e.g., underpaid wages, holiday, lack of or incorrect written contract of employment, or lack of or incorrect payslip.

The test you must meet (and how Stone helps)

Protected act (assertion). Did you allege a breach of a relevant statutory right (e.g., underpaid wages, holiday, lack of or incorrect written contract of employment, or lack of or incorrect payslip)? Ideally in writing, email, letter, or text message.
Principal reason. Was that assertion the real driver of dismissal (the “why now?” question)? Employer never tells the reason being your assertion, but timing, flawed inconsistent disciplinary, breach of Acas code, or minor issue leading to dismissal can prove automatically unfair dismissal.
Service. Automatic unfair means no two-year bar. That’s baked into s104 protection and explained in the case of Mrs. Sieradzka's.

Context reminder: protection under s104 hinges on alleging an actual infringement, not merely a threatened future breach (see Spaceman v ISS Mediclean).

5-question roadmap (triage your facts fast)

What exactly did you say or write? Does it identify underpayment (wages/holiday) rather than a vague gripe about “unfairness”? (Stone: letter explicitly said “wages” and “holiday pay”.) GOV.UK
Good faith & clarity. Would a reasonable manager understand you were alleging a statutory wages issue (s13)?
Timeline. How soon after the assertion did dismissal happen? Close proximity strengthens inference. (Stone: next-day meeting → dismissal.)
Reason analysis. What actually tipped them into dismissing? Beware invented reasons at hearing. Object if the tribunal drifts.
Quantum materials. Can you cost the shortfall? You’ll usually need s1 particulars (rate/method of pay) and s8 payslips (what was paid/deducted).

Pleading kit (copy-ready)

ET1 — Automatic Unfair Dismissal (s104) anchored to s13/s23

Claim: Automatically unfair dismissal (ERA s104(1)).Protected allegation: On [date], I alleged that the Respondent had underpaid wages/holiday pay, contrary to ERA s13 (summarise the letter/email/grievance at. I acted in good faith and made it reasonably clear I was alleging unauthorised deductions.Causation: I was dismissed on [date]. The principal reason was my s13 assertion (close timing, contemporaneous notes, and shifting explanations). See Stone v Burflex (EAT, 22 June 2021).Remedy: Basic/compensatory awards; and (in addition/alternatively) an order under s23 ERA requiring repayment of sums unlawfully deducted.

Parallel heads (often pleaded together s1 and 8 if relevant)

s23 deductions: Schedule dates/amounts/method, explain any series and limitation. (Usual limit: 3 months minus a day from the last deduction, subject to EC pause.)
s1 particulars & s8 payslips: If missing/defective, plead breaches that impede quantum proof and seek the paperwork.

Evidence pack checklist

The assertion: Email/letter/grievance that alleges underpayment/holiday pay (s13). (Stone letter is the model.)
Decision-maker trail: Meeting invite/notes/recordings, dismissal letter, internal messages—used to nail the principal reason.
Pay proof: s1 particulars (rate, method, overtime/price-work terms) + s8 payslips (before/on payday, itemised).
Quantum schedule: Table of hours/rates/holiday, netting to deduction total + series mapping for s23 limitation.

Grivance template

A) “Protected Allegation” email (good-faith s13 assertion)

Subject: Underpayment of wages/holiday pay (assertion of statutory right)Dear [Manager],I believe my [wages/holiday pay] have been underpaid, contrary to section 13 ERA 1996. My records show:• Date(s): [list] • Hours/Rate agreed: [list] • Amount paid: £[x] • Amount due: £[y].Please review and confirm payment. I’m happy to meet and provide documents.Kind regards,[Name]

B) s1/s8 chaser (to unlock contract/payslip evidence)

Subject: Request for written particulars and itemised payslipsDear [HR],Please provide my section 1 ERA statement (contract particulars) and any missing section 8 ERA itemised payslips for [months]. I need these to verify rate of pay and deductions.Many thanks,[Name]

Pitfalls & how to avoid them

Vague gripe ≠ assertion. Say “underpaid wages/holiday (s13),” not “treated badly”. Spaceman confirms you must allege an actual infringement, not a future threat.
Reason drift at hearing. Object if the tribunal toys with a new, unpleaded reason; Stone warns against it.
Limitation traps on s23. Diary 3 months minus one day from the last deduction; consider series and EC pauses.

If this rings true for your situation, drop a comment below and I’ll take a look. Keep it short and practical. No employer names, no personal identifiers—just the essentials so we can sanity-check whether s104 might fit.

Copy-paste this and fill the blanks:

Job/role (general): [e.g. scaffolder / retail assistant]
What you wrote or said about pay: “[exact sentence or two]”
When you said it: [date] → When you were dismissed: [date]
What they said was the reason: [their wording]
Payslip/contract info you have: [payslips? contract/section 1?]
What’s missing/underpaid (rough): [£ and what type—wages/holiday/overtime]

I can’t give formal legal advice here, but I can point you to the right test and flag quick wins/risks. If you’d rather not post publicly, say “DM please” and share just the timeline.