The five statutory fair reasons for dismissal

Section 98, ERA 96 lists five statutory “fair reasons” for dismissal:

• capability or qualifications (see pages 302 and 357);

• conduct (see page 358);

• redundancy (see pages 368 and 436);

• to comply with a legal duty or restriction (see page 368); or

• some other substantial reason (see page 369).

Each category is looked at in more detail below.

If the employer cannot satisfy the tribunal that the reason for the dismissal falls within one of the five categories, the dismissal will be unfair.

Often, employees want to argue that the real reason for dismissal was not one of the five permitted statutory reasons and instead was an automatically unfair reason, such as lawful trade union activities (see the list on page 373). The employee must produce some evidence of that automatically unfair reason (Kuzel v Roche Products Limited [2008] EWCA Civ 380). If they can do this, the burden then shifts to the employer to prove that they dismissed the employee for a fair reason.

Compulsory retirement is no longer a fair reason for dismissal (see also Chapter 7: Age discrimination).