Unfair dismissal

Revision Notes:                                           

What is the common law position?


  • At common law, an employer can dismiss any employee whenever he wishes to dismiss them. This is provided the employer has given full notice to the employee and complies with the contract. The employee will have no remedy available.


Statutory Law and Unfair Dismissal


  • Statute law provides the employee protection against dismissal at a ‘whim’. A statutory claim for unfair dismissal introduced fairness to termination of contracts of employment.

The main question here is whether or not the employer treated the employee fairly?


How can unfair dismissal arise?



  1. The contract is terminated by the employer (with or without notice)
  2. The employee was employed under a limited-term contract and that contract terminated without being renewed.
  3. The employee’s contract was terminated in the circumstances without notice being given to them.


Procedural Unfairness


  • The employer must justify the dismissal of the employee for a substantive reason.

Reasons for Dismissal


  • The burden of proof is on the employer. The employer must show that the reason for dismissal was fair.
  • There must be a substantive reason and a fair dismissal. The reason must be 1 of the 5 permitted reasons under s.98 of the Employment Rights Act 1996.


5 Permitted Reasons


  • s.98(1) and (2) Employment Rights Act 1996 determines if the dismissal is fair/unfair.
  • 98(2)(a): “If the dismissal relates to the capabilities or qualifications of the employee to do work of the kind which he was employed to do”
  • 98(2)(b): “If the dismissal relates to the conduct of the employee”
  • 98(2)(c): “That the employee was redundant
  • 98(2)(d): That the employee could not continue to work in the position held without contravening some statutory position; or
  • 98(1)(b): “There was some other substantial reason (SORS)”.

Fairness of Dismissal


Once the employer has provided the reason for dismissal falls within 1 of the 5 permitted reasons, the tribunal must decide whether the employer has acted reasonably within s.98(4) Employment Rights Act 1996.


Relevant case law:


Polkey v AE Dayton Services Ltd (1988) UKHL 8


Edwards v Governors of Hanson School (2001) IRLR 733


Devis & Sons Ltd v Atkins (1977) IRLR 314


Hall v Woolston Hall Leisure Ltd (2000) EWCA Civ 170


Tubbenden Primary School v Sylvester UKEAT/0527/11/RN


Iceland Frozen Foods Ltd v Jones (1983) ICR 17