Unfair Dismissals

An unfair dismissal occurs when an employee is dismissed for a reason that is not deemed fair according to Part X , Section 98 of the Employment Rights Act 1996. This legislation states that in cases of dismissal, it is for the employer to show that the reason for the dismissal (or if more than one reason, the principal reason) is either a reason falling within the legislation, or some other substantial reason of a kind that justifies dismissal.

The potentially fair reasons for dismissal are:

• Capability or qualifications – if the employee is not capable of performing the job for which they are employed. This could be due to general abilities or skills of the employee, or due to regular or long-term sickness which is preventing the employee from fulfilling their duties.

• Conduct – where the employee breaches the standards of conduct reasonably expected of them, they can be dismissed. However, except in cases of gross misconduct, dismissal will often not be justified for a first offence.

• Retirement – despite the discrimination laws preventing employers taking action based on the age of employees, retirement can be a fair reason for dismissal. Employers should review Section 98ZA to 98ZH of the Employment Rights Act 1996 in potential cases of dismissal for retirement.

• Redundancy – while redundancy can be a fairly quick method of reducing staff costs, employers do need to ensure there has been an appropriate consultation & selection process, demonstrating as necessary that the published criteria for redundancy did form the basis of the selections.

• Illegal to continue employment – if the employee cannot continue in their position without contravening a duty or restriction imposed
  by the law, this would be a fair reason for dismissal. As an example, if the employee had an order preventing them from being in close proximity to another employee, or the place of work, dismissal could be fair.

Providing the reason is one of the above, determination of whether the dismissal was fair or unfair shall be made in accordance with equity and the substantial merits of the cases – or “was the decision and actions of the employer fair & reasonable in the circumstances; would most employers take the decision to dismiss?”

Therefore, even if an employer is dismissing for a legally fair reason & they feel their actions are appropriate & justified, they should ensure this is likely to be the opinion of an Employment Tribunal before dismissing an employee.

For more information on unfair dismissals, or to ensure your business handles its dismissals fairly, contact Employment Law Clinic: