When will a dismissal be unfair?
[ch 10: pages 274-275]The law of unfair dismissal is governed by a statutory scheme that is found in the Employment Rights Act 1996 (ERA 96). A dismissal will be unfair unless the employer can:
• demonstrate a statutory “fair reason” for dismissal; and
• satisfy the tribunal that it acted reasonably in all the circumstances by dismissing for that reason.
Section 98 of the ERA 96 lists five statutory fair reasons for dismissal. A dismissal for a reason outside these categories cannot be fair:
• capability or qualifications;
• conduct;
• redundancy;
• to comply with a legal duty or restriction; or
• some other substantial reason.
Compulsory retirement is no longer a fair reason for dismissal (see Chapter 6: Age discrimination).
Some reasons for dismissal are so unacceptable that the law treats them as automatically unfair. An example would be dismissal for a reason connected to pregnancy. Where a dismissal is for an “automatically unfair reason”, the employer is simply not allowed to argue that their dismissal decision was fair or reasonable. Instead, a dismissal for that reason is always unfair.
Nearly all automatically unfair dismissals have no service requirement. For more on automatically unfair dismissal, see pages 289-292.