Fair Dismissal Grounds
The onus is on the employer to show that the dismissal is fair. The employer must positively show that one of the potentially fair grounds is applicable in the circumstances. The Tribunal must be satisfied that the employer acted reasonably, considering the size and administrative resources of the undertaking.
An employee is deemed constructively dismissed if they are justified in resigning due to conduct on the part of their employer. The employer’s action must constitute a significant breach of the employment contract, indicating that they no longer intend to be bound by it.
The Tribunal will examine the substantive grounds and procedures followed. Where the statutory dismissal and disciplinary procedures apply and are not treated as having been complied with, a dismissal will be unfair if the employer fails to follow the disciplinary procedures that go beyond the statutory procedure. The failure does not by itself make the dismissal automatically unfair, provided that properly following the procedure would have made no difference to the decision to dismiss and it was fair in other respects.
Fair Grounds
In order to justify a dismissal as “fair”, the employer must positively show that dismissal was based on one of the following potentially fair reasons for dismissal:-
capability or qualifications;
conduct;
redundancy;
statutory requirements;
retirement;
some other substantial reason.
The onus is on the employer to show that in the circumstances, there are objectively justifiable reasons for termination of employment based on these grounds. It is for this reason, that an employer must have the necessary documentation and follow requisite procedures if it is to successfully defend an unfair dismissal claim.
An employee has a right to be given the reasons for his dismissal in writing if he has completed two years’ service. The award may be increased of the employer does not give the statement.
Grounds for Fair Dismissal
“Capability and qualifications” refer to skill and performance requirements of the job, aptitude, physical and mental ability. Qualifications will refer to technical or professional qualifications relevant to the position. The employer will need to show that the absence of the capability or qualification significantly affects the ability to do the job.
“Conduct” or rather, misconduct, is a potentially fair reason for dismissal. Gross misconduct may be so serious as to justify immediate termination, provided the employee has an opportunity to defend his position against the allegation. Conduct could include “ordinary” misconduct such as persistent poor timekeeping, persistent absenteeism, attitude problems, carelessness etc. Examples of gross misconduct would include theft, fraud, violence, damage, dishonesty, harassment, significant negligence, alcohol abuse, insubordination.
Ordinary misconduct will not generally bring a contract to the end. The employer must generally have followed the fair disciplinary procedure and give the employee a number of warnings. In practice, the Tribunal will look to see that the employer has followed the ACAS code of practice and disciplinary practice and procedures. This requires the employer to go through four stages before dismissing:-
verbal warning;
first written warning;
final written warning;
dismissal.
The employee should be given an opportunity to state his case before each stage of the procedure.
Redundancy is a potentially “fair” ground for dismissal. See our separate note in relation to redundancies.
The “statutory” ground for fair dismissal may apply where an employee cannot continue in a job because he would fall foul of some law. An example would be a van driver who has lost his licence for 12 months.
Some other “substantial reason” for fair dismissal is a “catch-all” for any reasons which do not neatly fit into the above circumstances but which in the circumstances justify the employer in dismissal. One example may be where an employer reorganises his business and there are necessary contract changes.
It would fall short of a full redundancy but would be driven by economic factors. In this situation, dismissal of an employee who refuses to accept changes could be potentially fair. However, everything would depend on the circumstances.
An employee is deemed constructively dismissed if they are justified in resigning due to conduct on the part of their employer. The employer’s action must constitute a significant breach of the employment contract, indicating that they no longer intend to be bound by it.