Unfair dismissal

Employees who have been employed for over two years have the right not to be unfairly dismissed.

What are the potentially fair reasons to dismiss?

If an employee sues their employer for unfair dismissal, it is for the employer to show that the dismissal was for a “potentially fair reason”.

There are  a number of fair reasons listed at Section 98 of the Employment Rights Act 1996:

• conduct (or misconduct);
• capability;
• redundancy
• and statutory prohibition.

In addition to these, the employer can rely on “some other substantial reason” for dismissal, but must explain what that reason for dismissal was and justify it.

When will a dismissal be fair?

If the employer can show that the dismissal was for one of these above reasons, the employment tribunal will then determine whether the employer acted reasonably in treating that reason as a sufficient reason for dismissing the employee (section 98(4)(a) ERA 1996).

Tribunals therefore ask themselves whether the decision to dismiss fell inside, or outside, the “band of reasonable responses” available to an employer (Iceland Frozen Foods Ltd v Jones [1983] ICR 17).