Under the Employment Rights Act 1996, there are only 5 potentially fair reasons for an employer to dismiss an employee. Read on for more information.
The 5 Potentially Fair Reasons For Dismissal
One of first things I investigate when advising dismissed employee clients, is whether their employer has a potentially fair reason for dismissal. Section 98 of the Employment Right Act 1996 “the Act” identifies just 5 possibilities here.
Capability or qualifications
Section 98 (2) (a) of the Act lists capability and qualifications as a potentially fair reason for dismissal. The Act states that capability should be assessed by reference to an employee’s skill, aptitude, health, or any other physical/mental quality and that qualifications means any degree, diploma, or any other academic, technical, or professional qualification which that person held.
In my experience, capability dismissals generally fall into two main categories being a) poor performance (not hitting targets), or ill health – where for example the employee cannot undertake their work due to ill health, or they are unable to attend work due to ill health.
Conduct
Section 98(2)(b) of the Act lists the conduct of an employee as a potentially fair reason for dismissal.
As the name suggests, conduct dismissals relate to the conduct of the employee and very common examples include allegations of theft, dishonesty, violence, poor time keeping, harassment, alcohol, or drug abuse, etc…
Redundancy
Section 92(2) (c) lists redundancy as a potentially fair reason for dismissal.
Redundancy dismissals fall into three categories. In summary, these are that a) an entire business closes, b) where the branch, office, or location of work of a business closes, or c) when the employer simply needs less staff. For example, a restaurant might be reducing waiting staff from ten to five.
Statutory Restrictions
Section 98 (2) (d) lists statutory restriction as a potentially fair dismissal reason.
This reason covers situations where the employee cannot continue to work without contravening a duty or a restriction imposed by law. Common examples include a) if an employee needs to drive for their role, but has lost their driving licence, b) an employee works in a particular industry where a clear criminal record is required but they are convicted of an offence, etc….
Some other substantial reason
Finally, section 98(1)(b) of the Act, lists “some other substantial reason” as a potentially fair reason for dismissal.
This last category is in my experience a catchall which gives employers a very wide discretion to dismiss employees if they are unable to utilise one of the more specific reasons above.
Common examples of some other substantial reason can include a clash of personalities that cannot be resolved, pressure from third parties (such as suppliers or clients), an employee refusing to accept changes to their terms and conditions of employment, or perhaps, most common, a breakdown in trust and confidence which means ongoing employment would be impossible.
Other Requirements
Once an employer has identified a potentially fair reason for dismissal (as above). It is still essential they go on to determine whether dismissal would be fair. There are several elements to this question. An employer should always conduct a fair investigation, a fair disciplinary hearing, and appeal if appropriate.
Lincs Law Employment Solicitors Can Help You
To find out how Lincs Law Employment Solicitors can help you if you are facing a disciplinary procedure, or have already been dismissed, call us for a free initial consultation. Alternatively, for more information about unfair dismissal and claims in the Employment Tribunal, please see our website https://lincslaw.co.uk/services/employees/resignation-dismissal-and-redundancy/unfair-dismissal/.
Sophie Goodwill
Specialist Employment Law Solicitor
Lincs Law Employment Solicitors
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