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Factsheet: What is a Fair Dismissal?

Types of dismissal

A dismissal can occur in three different ways

  • You as the employer terminating the contract with or without notice
  • The expiry of a fixed term contract
  • Your employee leaving, with or without giving notice, in circumstances in which they are entitled to do so because of the employer’s conduct (known as a constructive dismissal)

Since 2012, employees have had to be employed for at least 2 years to be able to claim unfair dismissal under the Employment Rights Act (ERA). However, this does not mean that you can dismiss your employees with less than 2 years’ service without any risk of them bringing a Tribunal claim. There is no requirement for qualifying service in certain circumstances (for example dismissals due to pregnancy or whistleblowing), or to bring a discrimination claim under the Equality Act 2010.

In order to defend and ideally avoid a Tribunal claim, if you are contemplating dismissing staff with less than 2 years’ service you should follow good practice and have regard to how dismissals are judged to be fair or unfair under the ERA.

Fair reasons for dismissal

There are five potentially fair reasons for dismissal under the ERA: capability or qualifications, conduct, redundancy, breach of a statutory duty or restriction and “some other substantial reason” (SOSR). As well as relying on one of the potential fair reasons, you must also satisfy a Tribunal that you acted reasonably in treating that reason as sufficient to justify dismissing your employee.

The potential fair reasons encompass a wide variety of situations

  • Capability means the ability of someone in terms of their performance or if they become unfit for work or to do their particular job. A dismissal will relate to your employee’s qualifications if it is connected to any “degree, diploma or other academic, technical or professional qualification” relevant to your employee’s position
  • Conduct may be either a single act of serious misconduct or a series of acts that are less serious
  • Redundancy is defined under the ERA as arising from a business or workplace closure or a reduced requirement for your employees to carry out work of a particular kind
  • Statutory restriction. A dismissal is potentially fair if your employee “could not continue to work in the position which he held” without either you or your employee contravening “a duty or restriction imposed by or under an enactment.” This includes cases such a potential breach of immigration rules or your employee having a criminal record
  • Some other substantial reason (SOSR) is a catch-all category that covers potentially fair dismissals that would not fall into any of the other categories. In order to show SOSR, it is only necessary to establish a reason for the dismissal which is of a kind that could justify the dismissal; it is not necessary to show that it actually did justify the dismissal

Was the dismissal reasonable?

In every case, having established a potentially fair reason, a Tribunal will decide if the dismissal was reasonable. This essentially involves two considerations

  • Was a proper procedure followed, and if so:
  • Was the decision to dismiss outside a band of reasonable responses? Only if it was beyond what a reasonable employer would have done can a Tribunal conclude that a dismissal was unfair

Every case is different and whilst every Tribunal should apply the law in the same way, it can be difficult to predict outcomes. At Martin Searle Solicitors we are experts in advising on dismissals and can help you as employers protect your businesses by dealing with potential dismissals fairly.

Contact us today on 01273 609911, or email

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