When will a dismissal be unfair?

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.