4. What makes a dismissal unfair

[ch 4: page 26]

Employees with at least two years’ continuous service (see page 22) have the right not to be unfairly dismissed under section 94 of the Employment Rights Act 1996 (ERA).

Section 98 ERA says that an employer can only fairly dismiss an employee if they have:

• a fair reason for dismissal; and

• dismissal is reasonable in all the circumstances, including the employer’s size and administrative resources.

In other words, in most cases, establishing that a dismissal was unfair involves a two-stage test. The first looks at whether there is a statutory “fair reason”; the second (assuming there is a fair reason) looks at the “reasonableness” of the decision.

Some reasons for dismissal are “automatically unfair”. Where a dismissal is for an automatically unfair reason, there is no question of “reasonableness”. The employer is not allowed to dismiss for that reason. Automatically unfair reasons for dismissal are looked at in Chapter 5. Most (but not all) automatically unfair reasons for dismissal require no service. Instead, the employee is protected from day one of the employment.