What Are The Fair Reasons That An Employer Can Rely On In Dismissing An Employee?
Under the law of England and Wales, when an employer dismisses an employee, to avoid having an unfair dismissal claim against them, the employer needs to ensure that they have complied with steps as set out in employment law in England and Wales, which includes (but are not limited to) having a clear disciplinary policies and procedures in place.
However, in the event that there is an unfair dismissal claim against the employer, a dismissal would be considered ‘fair’ if the employer could demonstrate to the tribunal that the reason for dismissal was one of the five potentially fair reasons for dismissal, as set out in section 98(1) and (2) of the Employment Rights Act 1996.
The five potentially fair reasons for dismissal are: capability or qualifications, conduct, redundancy, breach of a statutory duty or restriction, and “some other substantial reason” (SORS). Please note that a dismissal could fall into more than one of the potentially fair reasons as they often overlap. Therefore, it is vital for the employer to refer to every of the above reasons when they defend an unfair dismissal claim. We will now briefly outline these potentially fair reasons.
- Capability or Qualifications
As the name suggests, capability relates to the employee’s ‘skill, aptitude, health or any other physical and mental quality’, as set out in section 98(3)(a) ERA 1996. In practice, capability dismissals usually fall into either because of poor performance of the employee, or because of the employee’s ill health.
Qualifications dismissal relates to any ‘degree, diploma, or other academic, technical or professional qualification’ that is considered to be relevant to the position of the employee, as set out in section 93(3)(b) ERA 1996.
- Conduct
According to 96(2)(b) ERA 1996, it is potentially fair to dismiss an employee due to their ‘conduct’. It could be either a single act of serious misconduct, or gross misconduct, or a series of acts which are less serious but have persisted. Examples include (but are not limited to) theft or dishonesty, breach of certain terms of the contract, repeated poor attendance, alcohol or drug abuse.
- Redundancy
This applies to where dismissal is ‘wholly or mainly attributed to’ reasons such as business closure, workplace closure, or reduced requirement for employees. The employer will have to establish that it has acted reasonably and fairly in dismissing the employee for that reason.
- Breach of a Statutory Duty or Restriction
This applies for when the employee cannot do their job that is required in their contract or they or their employer would be contravening ‘a duty or restriction imposed by or under an enactment’, as set out in section 98(2)(d) ERA 1996. A good example of this would be dismissal because continued employment of the employee would breach the Immigration Rules.
- Some Other Substantial Reason
This dismissal is for ‘some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held’, as set out in section 98(1)(b) ERA 1996. As there is no further legislation or statutory guidance on what this term means, it is usually looked at by the tribunal whether the employer has followed a fair procedure and whether the decision to dismiss the employee is within a reasonable response of a reasonable employer.
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Please note that information provided on this article is provided for general informational purposes only, and should not be construed as or is not intended to be a substitute of legal advice.