Allan McDougall
Allan McDougall

Unfair dismissal

In Unfair Dismissal cases the onus of proof is on the Employer to show the reason, or, if more than one principal reason, the principal reason for dismissing the Employee (Employment Rights Act 1996, Section 98). If the Employer fails to prove the reason is one of the four reasons set out in the statute (conduct, capability, redundancy or breaking the law) or “some other substantial reason” the dismissal is deemed to be unfair.

If the Employer proves that the reason for the dismissal was one of those referred to above, then it may be either “fair” or “unfair”. The Employer then has a second (often more difficult) hurdle to surmount but at this stage the burden of proof is neutral. The law provides that at that stage:

“the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the Employer): -

  1. Depends on whether in the circumstances (including the size and administrative resources that the employer’s undertaking) the Employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the Employee, and;
  2. Shall be determined in accordance with equity and the substantial merits of the case (Employment Rights Act 1996, Section 98 (4)).”

Thus although the onus of proof is on the Employer to show what the reason, or if more than one the principal reason, was for dismissing the Employee, if the Employer shows it was one of the reasons outlined above there is then no onus of proof on either the Employer or the Employee in relation to deciding whether it was fair or unfair.

An Employment Tribunal must not substitute its own view for that of an employer as to whether it was fair to dismiss the Employee. Rather it must determine whether the dismissal was within the range of reasonable responses open to the Employer. In coming to its decision on fairness, an Employment Tribunal is likely to pay particular regard to whether or not the Employer had issued formal policies or rules, for example, a staff handbook or policy document, covering the particular situation (and whether the Employee was or ought to have been aware of the relevant policy).

In deciding whether a dismissal was or was not fair, consideration of the implied terms in employment contracts can be of great significance.

An Employment Tribunal will take into account whether or not the Employer followed proper procedure (e.g. consultation/warning/discussion) before deciding whether to dismiss the Employee. Failure to follow proper procedures can turn a potentially fair dismissal into unfair dismissal.