Once it has been established that a claimant has the right to bring an Unfair dismissal claim (see Practice Notes: Entitlement to claim unfair dismissal and Definition of Dismissal in unfair dismissal), it will generally be for the employer to show that the reason or (if more than one) the principal reason for dismissal was a potentially fair reason (see Practice Note: Reason for dismissal—general). If the employer satisfies the tribunal that the reason was potentially fair, the tribunal will then consider whether, in all the circumstances of the case, the dismissal was fair.
Automatic unfair dismissal
The Employment Rights Act 1996 (ERA 1996) and certain other legislation specify various reasons for dismissal that make it automatically unfair. It is for the employee to allege that their dismissal was for one of those reasons. Where the employee does allege this, the question of who has the burden of proving the real reason for dismissal will depend upon whether or not the employee has sufficient length of service to claim ordinary (non-automatic) unfair dismissal:
- •
where the employee does not have adequate
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