Reasons for dismissal ― generally

By Tolley in association with Hogan Lovells
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The following Employment Tax guidance note by Tolley in association with Hogan Lovells provides comprehensive and up to date tax information covering:

  • Reasons for dismissal ― generally
  • Automatically unfair reasons
  • Potentially fair reasons
  • Written statements for reason of dismissal

All SI and case references in this guidance note are subscription sensitive.

Once it is established that a claimant has the right to bring an unfair dismissal claim ― in other words that he was an employee, he was dismissed, his claim was presented in time and he has the requisite continuous employment ― it will generally be for the employer to show:

  • what the reason or, if there was more than one, the principal reason was for dismissing the employee
  • that it was a potentially fair reason for dismissal

If the employer is unable to satisfy the tribunal that the reason for dismissal was potentially fair, the dismissal will be unfair. If the employer does establish a potentially fair reason for dismissal, the tribunal will consider whether the dismissal was fair or unfair having regard to all of the circumstances of the case, including the employer’s size and administrative resources.

ERA 1996, s 98(4)

Other factors to be taken into account by the tribunal include any relevant Codes of Practice and any relevant human rights issues.

It is not for the employment tribunal to substitute its own view for that of the employer when considering the fairness of a dismissal. Instead, it should determine whether the employer’s actions fell within the range of reasonable responses of a reasonable employer. In other words, even if the tribunal would not itself have decided to dismiss in the circumstances facing the employer, the question it must consider is whether no reasonable employer could have decided to dismiss in those circumstances. This approach applies not only when considering the substantive decision to dismiss but also when assessing the procedural steps taken by the employer.

Post Office v Foley [2000] IRLR 827; Whitbread v

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