What is a fair dismissal

The Employment Rights Act 1996, section 98 (4) (ERA) sets out the statutory fairness test that an Employment Tribunal must apply when determining whether a dismissal was fair.

The test is in the form of two hurdles; firstly, that the reason for dismissal was for one of the fair reasons, and secondly, whether you acted fairly in all the circumstances.

The importance of policies and procedures

Having robust company policies and procedures is vital to defending employment tribunal claims. All line managers should be trained on them to ensure they are being applied correctly and consistently across the business. Together they reflect the culture of an organisation and the way it treats its people.

Fair reasons for dismissal

Conduct
Where the employee has done something that is unacceptable and/or is a breach of a company policy or process. It is generally something that is within their control.

Capability
Where the employee is not able to do their job either because they do not have the right skills or qualifications, or their health prevents them from doing so

Redundancy
When the job role is no longer needed

Statutory illegality or breach of a statutory restriction
Where an employee is unable to carry out their role because of a legal restriction, for example, somebody whose role requires driving, and the employee gets banned from driving

Some other substantial reason (also known as SOSR)
A general term that justifies bringing the employment contract to an end for reasons which does not fit in with the first four fair reasons above.

Acting fairly in the circumstances

The second part of the legal test is more difficult because it focusses on what is reasonable, and there is no definition of what ‘reasonable’ is within the ERA. What may be reasonable for one employer may not be to another.

It considers whether a proper procedure was followed and whether the decision to dismiss was within the band of reasonable responses.

Line manager training

Disciplinary matters needs careful handling, especially cases of alleged gross misconduct where a potential outcome could be summary dismissal. It is important for all line managers to be trained in handling disciplinary matters and employment law. Contact me to book your employees on our proven line manager training programme.

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