Legal Article - Employment Law

Fair Dismissal

A dismissal will be fair if the employer can show that the reason for it was related to

• The employee’s capability or qualification for the job (this can include ill health dismissals)

The employee’s conduct (or rather misconduct, including persistent short periods of absence)

• Redundancy (i.e. broadly where the employer’s need for employees to do certain work has ceased or diminished or is expected to do so)

• A statutory restriction on either the employer or the employee which prevents the employment being continued (e.g. loss of driving licence; no work permit)

• Some other substantial reason which could justify the dismissal (e.g. business reorganisation, third party pressure to dismiss, personality clashes).

If the employer cannot demonstrate the reason for dismissal was one of the above, the industrial tribunal will decide it was unfair.

Even if the employer can demonstrate the dismissal was for one of the above reasons, they must still show that they acted reasonably in the circumstances (including the size and administrative resources of the undertaking) in treating that reason as sufficient to justify dismissing the employee.

What this means in practice, based on case law from the courts, for different types of dismissal is described in the section below on Practical Implications.

Written Statement of Reasons for Dismissal

Employees with one year service or more who have been dismissed may request from their employer (either orally or in writing) a written statement of the reasons for their dismissal. The employer must provide this statement within 14 days of the request.
Employees who are dissatisfied because they have not received a statement or believe the statement to be inaccurate may refer the matter to an industrial tribunal.

Women who are pregnant or on statutory maternity leave who have been dismissed are entitled to receive a written statement of the reasons for their dismissal, regardless of whether or not they have requested one and regardless of their length of service.

Published: 03 Jun 2011


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