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Fairness of Dismissal

In deciding if a particular dismissal was fair or not an employment tribunal has to take a number of factors into consideration.

The rules that applied prior to 2009 stated that if the employer had not properly followed the statutory dismissal procedures any resulting dismissal would be deemed to be automatically unfair, (which applied to dismissals that took place before the 6th April 2009).

The statutory dismissal procedure no longer applies, but the matter of the process of dismissal remains a crucial element in determining the fairness of any dismissal (see below).

The first step in determining if a dismissal is fair has remained the same following the repeal of the statutory dismissal procedures. The employer will need to demonstrate that it genuinely relied on a reason for dismissal that is listed in the Employment Rights Act 1996 as being a “potentially” fair reason. The most common of these are:

  1. Misconduct
  2. Redundancy, and
  3. Incapability

The tribunal has to consider if in the circumstances, the employer was justified in dismissing the employee for the reason given. In the context of “misconduct” dismissals the tribunal has to consider if the decision to dismiss fell within a “range of reasonable responses”. Different employers may choose different outcomes, many of which may be within the “range” of reasonable responses. One fact that remains clear is that the question of reasonable response can only be examined in the light of the facts known by the employer at the time of the dismissal: although this can take into account information discovered during an internal appeal against dismissal. The tribunal is required to take into account the size and resources of the employer when considering if the dismissal was fair or not. This does not mean that small employers can take a cavalier or irrational approach to dismissal. However it would be relevant in considering if there was an alternative to dismissal, such as if any other suitable work was available to the employee.

The Employment Rights Act 1996 also requires tribunals to consider if the dismissal was “in accordance with equity and the substantial merits of the case”. This is probably best summarised as being equivalent to “fair play”. So, inconsistency with the treatment of others may be relevant here. However, ultimately the facts of the case in hand are paramount. Consideration of the employee’s previous work record may be relevant here too.

Procedure has long been tied to the issue of fairness in dismissal cases. While the statutory disciplinary and dismissal procedure was repealed on the 6th April 2009 the importance of procedure remains.

From the 6th April 2009 the ACAS Code of Practice has had an enhanced status, as the Employment Tribunals will be required to consider if an employer has properly followed the Code in dealing with a relevant dismissal (ie the Code does not apply to all types of dismissal). If the employer seriously (and "unreasonably") fails to follow the Code, the Employment Tribunal can increase the level of compensation to be paid by the employer, by up to 25% extra on the original assessed amount.

There is also case law relating to each type of dismissal, which provides some guidance on the approach to the process and fairness of a dismissal. In many cases the Employment Tribunal will be required to consider the "range of reasonableness" test at a number of stages in the assessment of the process of a dismissal. It may be frustrating to both employers and individuals that the "range of reasonable responses" test does mean that the outcome of any particular dismissal case cannot be easily predicted. 

Proper advice should always be sought prior to dismissal in regard to both the facts of the case and the process in order to assist in considering whether a dismissal is likely to be regarded as fair or unfair by an employment tribunal.


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