In a claim to an employment tribunal, the employer has to show that the reason for the dismissal, or the principal reason if there is more than one, was one of the statutory fair reasons under the Employment Rights Act 1996.
These are reasons related to:
- the capability or qualifications of the employee for performing work of the kind he or she was employed to do;
- the employee's conduct;
- the employee's job being redundant; and
- where continuing the employment would have meant that the employer or employee would have been breaking the law.
If the genuine reason for your dismissal is not listed above, but there was some other substantial reason that justified the dismissal, then it can still be a fair dismissal. The legal phrase is "substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held".
Examples of fair dismissals under this heading have included:
- dismissals for unreasonably refusing to agree to changes to terms and conditions;
- dismissals due to a serious breakdown in ‘mutual trust and confidence’;
- dismissals due to third party pressure (for example from a main customer or supplier);
- dismissal for refusing to sign a restrictive covenant;
- dismissal due to return of the original post-holder, where a role was filled on a temporary basis, for example secondment or maternity.
Tribunals will judge each case on its own merits. Since 2011, retirement is not a lawful reason for dismissal.