Unfair Dismissal

Dismissals in the Workplace

When deciding the fairness of a dismissal, a Tribunal considers whether the reason for the dismissal comes under one of the potentially fair reasons for dismissal.  

However, even if an employer can establish that they have dismissed for a potentially fair reason, there is a second ‘test’ which has to be satisfied. The fairness of the dismissal is judged by examining whether the employer acted reasonably or unreasonably in treating the reason as sufficient to justify dismissing the employee. To decide this they also consider whether a fair procedure was used and whether the decision to dismiss the employee fell within the ‘range of reasonable responses open to a reasonable employee’.

In some circumstances dismissal can never be justified and is automatically unfair; for example dismissal for reason of pregnancy.  

Potentially fair reasons for dismissal include:

Capability

Capability dismissals can be divided into three areas:

  • The employee’s qualifications are insufficient
  • The employee demonstrates incompetence in carrying out their duties
  • The prolonged or intermittent absence due to ill health means the employee is incapable of attending often enough to comply with the contract of employment

Employers need to ensure that, when dismissing an employee for lack of capability through ill health, they are not breaching laws relating to disability discrimination.

Conduct

Dismissals relating to conduct can result from a variety of activities.   Some examples are theft, fraud and drunkenness at work.   In the more minor categories employees should normally be given the chance to improve their behaviour through a ‘warning’ system, such as ‘verbal warning, first written warning, final written warning, dismissal’. However in some instances an employee can be shown to have acted in such a manner to justify an immediate dismissal with no system of warnings.   This is commonly known as ‘gross misconduct’.

Redundancy

An employee is dismissed by reason of redundancy if one of the following situations has arisen:

  • The employer has ceased or intends to cease carrying on the business in which the employee worked
  • The employer has ceased or intends to cease carrying on the business in the place in which the employee worked, or
  • The fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have (or will) cease or diminish.

When conducting redundancies employers should be careful to follow the correct procedures.   The procedure is different if the redundancies affect more than 20 employees.

Statutory Illegality

A situation where an employer discovers that it would be legally impossible to continue to employ the member of staff.

Some Other Substantial Reason

If the employer can show ‘some other substantial reason’ to justify a dismissal, and can show that a fair procedure was used and that the decision to dismiss fell within the range of reasonable responses open to the employer, the dismissal will be held to be fair.   Legal advice should be sought before relying upon this reason for termination