6. Dismissal

Legal protection from unfair dismissal is found in sections 94 to 98 of the Employment Rights Act 1996 (ERA 96). Under these provisions, dismissal is unfair unless the employer can establish one of five “fair” reasons and can also show that it acted reasonably by dismissing the employee for that reason. Those reasons are:

• capability or qualifications;

• conduct;

• redundancy;

• to comply with a legal duty or restriction; or

• “some other substantial reason” (SOSR).

Employment tribunals must assess the reasonableness of the employer’s actions by looking at all the surrounding circumstances, including the employer’s size and administrative resources, and overall “equity” (section 98(4), ERA 96).

To bring a claim of unfair dismissal, the employee must be able to show that there has actually been a dismissal. This is not always as straightforward as it sounds. For example, there may be a mutual termination when someone leaves for reasons of ill health. Or there may be a deemed dismissal when an employer imposes significant changes to an employee’s terms and conditions of employment.

A constructive dismissal is when an employee resigns in response to a fundamental breach of conduct by their employer.