General fairness of dismissal

Ashok Kanani

Editor's message: If an employee you dismiss challenges the fairness of his or her dismissal, your organisation must be able to demonstrate: that the dismissal is for one of the potentially fair reasons (capability, conduct, redundancy, breach of a statutory enactment, or some other substantial reason); and that you acted reasonably in all the circumstances.

It is very important that you follow a fair procedure. For example, where an employee has committed a criminal offence that occurred outside the workplace, you must still carry out your own investigation and follow a fair procedure before reaching a decision on whether or not to dismiss the employee or take any other disciplinary action.

In assessing the fairness of the dismissal, an employment tribunal will consider whether or not your decision to dismiss the employee was within the band of reasonable responses open to an employer. The tribunal will take into account your organisation's size and administrative resources when making this assessment.

Ashok Kanani, Employment law editor

New and updated

  • Failure to consider surrounding circumstances made dismissal for physical violence unfair

    Date:
    13 January 2017
    Type:
    Law reports

    The Employment Appeal Tribunal (EAT) has held that the dismissal of an employee for physical violence was unfair because the employer failed to have regard to all the surrounding circumstances and the employee's exemplary disciplinary record over 42 years' service.

  • Unfair dismissal

    Type:
    Employment law manual

    Updated to include information on Bandara v British Broadcasting Corporation, in which the EAT considered the weight that employers should attach to manifestly inappropriate warnings when considering dismissal.

  • Unfair dismissal: Procedural defects cured by internal appeal

    Date:
    1 January 2017
    Type:
    Law reports

    In Khan v Stripestar Ltd EAT/0022/15, the EAT held that an employment tribunal was entitled to find that a dismissal was fair despite a wholly defective and unfair initial disciplinary hearing, because the subsequent internal appeal cured the defects earlier in the process.

  • Fair dismissal of employee who refused to work extra hours before Christmas

    Date:
    7 November 2016
    Type:
    Law reports

    This employment tribunal held that an employer fairly dismissed an employee who refused to do overtime as required under her contract of employment and whose protests at being asked to do so caused discontent among her fellow workers.

  • Date:
    1 September 2016
    Type:
    Legal guidance

    A recent case has caused uncertainty about the HR role in disciplinary procedures. HR should certainly not be judge, jury and hangman, writes John Charlton.

  • Case round-up

    Date:
    1 September 2016
    Type:
    Law reports

    Chris Cook is partner and head of employment and Keely Rushmore is senior associate at SA Law. They round up the latest rulings.

  • Dismissal of baker for not washing hands was fair

    Date:
    28 July 2016
    Type:
    Law reports

    An employment tribunal has held that an experienced employee should have appreciated the seriousness of breaching his employer's hygiene rules and it was appropriate for the employer to dismiss him.

  • Unfair dismissal: no limit on defects cured by fair appeal

    Date:
    21 July 2016
    Type:
    Law reports

    The Employment Appeal Tribunal (EAT) has held that there are no limitations on the nature and extent of the deficiencies in a first stage disciplinary procedure that can be cured by a thorough and effective appeal.

  • Date:
    1 July 2016
    Type:
    Legal guidance

    Employers need to tread carefully in situations where disparity of treatment arises. Natalie Jeffries, an associate from Burges Salmon, looks at the lessons from key cases where employees in an organisation were dealt with differently for the same types of misconduct.

  • Fair dismissal for use of racist term heard by white colleagues only

    Date:
    8 June 2016
    Type:
    Law reports

    An employment tribunal has held that an employer fairly dismissed an employee for using a racist term in the presence of white colleagues. The tribunal was unimpressed with the claimant's arguments that he did not realise anyone was listening, did not intend to offend, and the word is "street talk" where he lives.