What makes a dismissal unfair





The statutory basis of the right not to be unfairly dismissed is 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 tribunal: 





• that the dismissal was wholly or mainly for one of the five statutory “fair reasons” listed on page 341; and 





• that the employer acted reasonably in all the circumstances by dismissing the employee for that reason. 





When assessing the reasonableness of the employer’s actions, the tribunal must take into account all the circumstances surrounding the dismissal, including the employer’s size and administrative resources (section 98(4), ERA 96).





The 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.





Some reasons for dismissal are automatically unfair. Where a dismissal is for an automatically unfair reason, 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 357. Most, but not all, do not need service and instead provide protection from day one of the employment.