What makes a dismissal unfair



The statutory basis of the right not to be unfairly dismissed is section 94 of the Employment Rights Act 1996 (ERA 96). A dismissal will be unfair unless the employer can satisfy the tribunal: 



• that the dismissal was wholly or mainly for one of five statutory “fair reasons” (see below); 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.



Applying this statutory test in most cases involves a two-stage process. The first looks at whether the employer has established one of the statutory “fair reasons”. 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 for the employer to dismiss for that reason. The main categories of automatically unfair reasons for dismissal are set out from page 370. Most, but not all, do not need service. Instead, protection is available from day one of the employment.