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 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.
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’.
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.
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.
Do you always need two years service to bring an unfair dismissal claim against your employer?
For many types of Employment Tribunal claims such as unlawful deduction from wages or discrimination claims there is no set time an employee must serve before having an entitlement to be able to bring such a claim. However with unfair dismissal, it is usual that employees must serve for a minimum of two years with their employer before they are entitled to bring a claim against that employer for unfair dismissal.
There are however a variety of exceptions to this rule which many employers and employees are unaware of. Even if you have not worked for your employer for two complete years you may still be entitled to bring a claim against your employer for unfair dismissal in the event your employment has been brought to an end in circumstances which may qualify.
If you have received notice of termination of employment or believe your employer may shortly be looking to bring your employment to an end in circumstances which you consider to be unfair you should speak with one of our firm’s specialist employment lawyers. Together we can establish whether the circumstances in which your employment is coming to an end may amount to an unfair dismissal which may fall within the exceptions to having not completed two years service.