What are the fair reasons for dismissal?  

The Employment Rights Act 1996 (ERA) confirms that an employee should not be unfairly dismissed. In order for a dismissal to be fair there must be a fair reason and for each reason there is a fair procedure.  

Reasons classed as fair 

The fair reasons under the (ERA) are: 

1. Conduct
2. Capability
3. Illegality
4. Redundancy
5. Some other substantial reason

Conduct 

An employee can be dismissed if their conduct does not meet an acceptable standard. The process involved is usually a disciplinary process and could be in relation to a one off serious event or a number of smaller events.  

Capability  

This is used when an employee’s standard of work has fallen below what is expected of them by their employer, and usually, performance improvement plans would be used to confirm with the employee the standard that they should be achieving.  

Illegality  

This is used when the contract of employment itself becomes illegal. Examples of this would be a taxi driver who loses their drivers licence, meaning performance of their duties would be illegal. This reason is not widely used and if you have any questions you should seek independent legal advice in relation to the same.  

Redundancy  

This is probably the most well known of the reasons for dismissal and when the reason is redundancy usually an employee would be entitled to receive a redundancy payment.  

Some other substantial reason 

This is a catch all which covers any potentially fair reason for dismissal that does not fall within one of the above categories. One possible fair reason would be if a major customer refused to work with an employer if they continued to employ a particular employee. As with illegality, independent legal advice should be sought if this ground is being relied upon.  

Unfair cases  

If one of the above fair reasons is not in existence, then a dismissal is likely to be held to be unfair, however, in order to bring a claim in the tribunal for unfair dismissal an employee must have been an employee (and not a worker or self employed) and they must have been employed for over two years.  

There are some instances where a dismissal will be ‘automatically unfair’ for example, if the reason is discriminatory. In such situations, the employee can bring a claim in the tribunal even if they have not been employed for two years.  

If an employee has not been employed for two years or more and the reason for the dismissal is not an automatically unfair reason then it is unlikely that the employee will be able to challenge the same.  

An employee may be able to claim for wrongful dismissal if they have not been employed for two years. These claims are effectively breach of contract claims and so can be brought where provisions under the employment contract (such as notice provisions or holiday pay) have not been complied with.