What is a fair dismissal?

What is a fair dismissal?

There are five prima facie fair reasons for dismissal.

1 The capability or qualifications of the employee
Capability in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality. 
The issue could therefore be one of poor performance, or ill health.
Qualifications in relation to an employee means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held

2 The conduct of the employee
Examples of conduct that might be relied upon to justify dismissal are:
 
• Insubordination
• Threatening or abusive language
• Violence
• Theft
• Being under the influence of drink or drugs in the workplace
 
Examples of the type of misconduct which could result in dismissal are usually contained within the employer's disciplinary policy.
 
3 The employee is redundant

4 The employee could not continue to work in the position he or she held without contravention of a duty or restriction imposed by or under an enactment
An example of this may be if the employee has lost his driving licence and the requirement to have a driving licence is central to his job

5 Some Other Substantial Reason (SOSR)
Dismissals which do not fall into any of the categories above may be caught by this provision.

SOSR has been interpreted to mean a "sound good business reason” and is often used to justify dismissals resulting from business reorganisations or because of personality conflicts within the organisation which has led to the working relationship having broken down irretrievably.  

If the employer cannot show the reason for dismissal, the dismissal will be automatically unfair.

The Employment Rights Act 1996 sets out the statutory test of fairness:

….the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a)  depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

(b) shall be determined in accordance with equity and the substantial merits of the case. 

The Employment Tribunal (ET) cannot substitute its own opinion for that of the employer.  Instead the ET must consider whether the decision to dismiss fell within a "band of reasonable responses” open to a reasonable employer.

The law in this area is very complex and the above information is for general guidance only. 

If you have been dismissed from work and think you may have a claim for unfair dismissal you should act promptly. 

Contact us on 0845 0098 0863 (local rate) or info@dsmlegal.co.uk for further information and advice