Employment Law & Unfair Dismissal

Whilst all employers and employees will be familiar with the term ‘unfair dismissal’, relatively few will know exactly what is covered by it (and what isn’t)

From a legal point of view, an unfair dismissal occurs when an employee is dismissed for a reason that is not deemed fair according to Part X, Section 98 of the Employment Rights Act 1996. This legislation states that it is up to the employer to show that the reason for the dismissal (or the principal reason if there is more than one) is either a reason that falls within the legislation, or some other substantial reason of a kind that justifies dismissal.
There are a number of reasons for dismissal which are regarded as being ‘fair’. These are, in no particular order:


Whilst redundancy can be a relatively quick way to reduce staff costs; employers need to ensure they take appropriate consultation and selection measures beforehand as they will have to demonstrate that the published criteria for redundancy formed the basis of their selections.

Lack of Capability

This can be applied to any employee who is incapable of performing the job they were initially employed to do. This could be due to the employee lacking the general abilities or skills needed to fulfil the entire remit of their role or it could be due to them experiencing regular or long-term sickness that is preventing them from completing their duties.


Any employee who breaches the standards of conduct reasonably expected of them can be dismissed. In general, employers who breach established codes of conduct will not be dismissed if it is their first offence. However, dismissal for a first offence can be justified in cases of gross misconduct.

Illegal to Continue Employment

This reason for dismissal can be invoked if an employee is unable to continue in their position without contravening a duty or restriction imposed by the law. For instance, any employee who receives a court order preventing them from being in close proximity to another employee (or their place of work) could be fairly dismissed.


Whilst legal solicitors will point out there are discrimination laws in place to prevent employers from dismissing employees of a certain age; retirement can still be a fair reason for dismissal. Any employer that is thinking of going down this route would do well to review Section 98ZA to 98ZH of the Employment Rights Act 1996 before endeavouring to carry out a retirement-based dismissal.

Providing one of the above reasons is valid, determination of whether a dismissal is fair or unfair will be made in accordance with equity and the substantial merits of the cases. A solicitors firm would more than likely illustrate this by asking: “Is an employer’s decision to dismiss fair and reasonable in the circumstances, and; would most employers make the same decision?”

Needless to say, employers would do well to make sure this is likely to be the opinion of an Employment Tribunal before they decide to dismiss an employee.

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