What makes a dismissal unfair

The right not to be unfairly dismissed is found in sections 94 to 98 of the Employment Rights Act 1996 (ERA 96). The law says that a dismissal will be unfair unless the employer can satisfy the ET:

• that the dismissal was wholly or mainly for one of five statutory “fair reasons” listed below; and

• that the employer acted reasonably by dismissing the employee for that reason. When assessing the reasonableness of the employer’s actions, the ET must consider all the surrounding circumstances, including the employer’s size and administrative resources, and must decide fairness “in accordance with equity and the substantial merits of the case” (section 98(4), ERA 96).

In other words, this statutory test involves a two-stage process. The first looks at whether the employer has established one of the five statutory “fair reasons” (see below). The second (assuming there is a fair reason), looks at the “reasonableness” of that reason and overall fairness.

Some reasons for dismissal are automatically unfair, in which case no question of “reasonableness” arises. It is simply unlawful to dismiss for that reason. The main categories of automatically unfair reasons for dismissal are set out from page 387. Most, but not all, do not need qualifying service and instead provide protection from day one of the employment.