Once a claim for unfair dismissal is brought what must an employer do to defend its actions?

When a claim for unfair dismissal is brought, an employer must first establish before an employment tribunal that the reason for the dismissal was one of the designated potentially fair reasons listed under s.98 of the Employment Rights Act 1996:

  • capability or qualifications;
  • conduct;
  • redundancy;
  • contravention of a statutory duty or restriction; or
  • some other substantial reason of a kind such as to justify the dismissal.

If the employer is able to show that the reason for dismissal was one of the potentially fair reasons under the Act, the tribunal must go on to determine whether or not the dismissal was fair in the circumstances. This will depend on whether or not the employer acted reasonably in treating the reason as a sufficient reason for dismissal in the circumstances (including the employer's size and administrative resources), and whether or not it followed a fair procedure.