An employer needs to establish a genuine belief in the employee’s misconduct. The statutory test under Section 98 subsection 4 of the Employment Rights Act 1996 is determined according to the notion of fairness.
- Did the employer undertake a fair investigation in reaching the decision to dismiss?
- Did the employer act reasonably in concluding misconduct and identifying sufficient reason for dismissal?
In doing so the statutory test also requires the employment tribunal to reach its answer in relation to the equity and substantial merits of the case. Fairness normally constitutes
- Procedural fairness. An employer has to adopt a fair approach to its investigation and gather all relevant evidence and give the employee an opportunity to respond to the allegations. Please see ACAS Code of Practice on the disciplinary grievance procedures where a dismissal is procedurally unfair the Tribunal can reduce compensation if they find there was a chance that a fair dismissal would have resulted had a fair process taken place. This is known as a Polkey reduction.
- Substantive fairness.This is related to the range of, what is termed, reasonable responses test. There are many offences, for instance, that may constitute minor misconduct but where it would be too harsh for an employer to dismiss.
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