When might a dismissal be reasonable?

If your dismissal was for a potentially fair reason, the Tribunal has to decide whether your employer has acted reasonably in using this as the reason to dismiss you.

• Misconduct
• Incapacity
• Sickness
• Redundancy
• Contravention of legal duty or restriction
• Some other substantial reason

Misconduct

• Was the alleged misconduct sufficiently serious to justify dismissal for a one off offence?
• If not, have you had previous warnings about misconduct?
• Did your employer have reasonable grounds to believe you had committed misconduct?
• Did your employer investigate?
• Did your employer give you a chance to give your side?
• Did your employer treat all employees the same for similar misconduct?

If the answer to any of the above is “no” then your dismissal may not be reasonable.

Incapacity

Your employer might say you either do not have the ability to do your job to the required standard, or you are unable to do your job because of sickness.

Where the reason is based on poor performance the Tribunal will consider whether your employer honestly believed, on reasonable grounds, that you were incompetent and had investigated adequately, including hearing your view.

Your employer should also have made you aware of the problem with your work and given you an opportunity to improve, with a warning that you might be dismissed if you did not improve.

Your employer should have given reasonable assistance to help you improve, for example offering training. If your employer did not offer you an alternative appropriate vacancy this may also point to the dismissal being unreasonable.

Sickness

Where the reason for your dismissal is that you have been off sick for some time the Tribunal will expect your employer to have consulted with you and obtained a medical opinion about when you are likely to return to work, before taking the decision to dismiss you.

You can also ask your employer to take account of a report from your own GP or consultant. The Tribunal will be looking at whether your employer was reasonable in dismissing you rather than awaiting your recovery. This will depend on a number of factors such as how long you have worked for your employer, the length of time you are expected to be absent, how likely your illness is to happen again, and how difficult it is for your employer’s organisation to cope with your absence from work. Again if your employer has a suitable vacancy that you could cope with and does not offer it to you, that might be regarded as unreasonable.

If your employer has dismissed you because of a number of different ill health absences then the reasonableness of the decision will depend on whether you have been clearly warned of the level of attendance expected (which should be reasonable), and warned of dismissal if you do not improve. You should have been given an opportunity to explain the reasons for your absence. Your employer should also treat all employees consistently.

Where you have a long term or persistent health problem you should also consider whether you might be protected by the Disability Discrimination Act 1995 (even if you do not consider your health problem a disability). This would give you additional protection (see links on the right for more information).

Redundancy

A dismissal for redundancy is likely to be fair provided your employer has genuinely had, or expects to have, a reduction in need for employees to do a particular kind of work either generally or at your particular workplace and has

• consulted with affected employees and considered their views a reasonable period before making the decision to dismiss for redundancy (unless consultation would be absolutely futile for example because the business is insolvent);
• selected a reasonable pool of employees to choose from in making the redundancies;
• fairly applied objective selection criteria; and
• looked for and offered any suitable alternative vacancies.

Contravention of legal duty or restriction

You may be dismissed because you are no longer qualified to do your job, for example you have been banned from driving. In this case, your employer would need to show that driving is a necessary feature of your job. Your employer should consult you about the consequences of losing your driving licence (or an alternative situation involving a legal restriction) and consider alternatives to dismissal. For example, your employer could assign you to a different job for the duration of the ban, or remove some of your duties for that period.

Some other substantial reason

Even if the employer’s reason for your dismissal does not fall into one of the above categories, your dismissal may still be fair if it is another reason related to the needs or interest of the organisation. The Tribunal would still consider whether the decision to dismiss was reasonable and whether, if relevant, the employer has warned you of what might happen, considered your views, and considered other vacancies.

March 2006