Conduct dismissals

A reason relating to an employee’s “conduct” can be a fair reason for dismissal (section 98(2)(b) ERA 96).

A conduct dismissal is based on something the employee has done or failed to do. It is more accurately described as misconduct. The basic test for establishing whether a conduct dismissal is fair is:

• did the employer genuinely believe that the employee was guilty of the offence?

• were there reasonable grounds for that belief?

• has a reasonable investigation been carried out?

This basic test was established in the case of BHS v Burchell [1978] IRLR 379. The employer does not have to meet a criminal standard of proof. For example, the fact that following a dismissal for dishonesty based on suspected theft, police decide not to press charges against the dismissed employee will not, on its own, make the dismissal unfair (see page 40).

As long as the decision to dismiss was within the band of reasonable responses it will be fair. The “band of reasonable responses” is explained on page 27.