Unfair Dismissal - Fairness of Dismiss
Statutory Test
Once employee has proven they have been dismissed and are eligible to make a claim, bu
who must satisfy that dismissal was for a 'potentially fair reason' - s98(1) and (2) Employme
It's then for an Employment Tribunal to consider the facts and assess the Reasonableness
s98 ERA 1996 - Sets out the 5 statutory reasons that can be fair.
Capability/Qualifications - s98(2)(a).
Conduct - s98(2)(b).
Redundancy - s98(2)(c).
Statutory restriction on employment - s98(2)(d).
Some other Substantial Reason - s98(1)(a).
No judgement as to 'reasonableness' or 'adequacy' of reason at this stage.
E.g., assaulting customer or theft is 'conduct' reason.
Being 5 mins late for work also 'conduct' reason.
If reason for dismissal not within s98 list, not a potentially fair reason.
E.g., dismissal because of ethnic background.
In this case, dismissal is unfair without having to look any further at reasonableness.
💡 Dismissal not automatically unfair, to claim, still need to have two years service.
If reason falls within one of s98 categories, tribunal then needs to assess reasonableness - Neu
s98(4) ERA 1996
Employer can show that reason is potentially fair, then tribunal will use s98(4) statutory test as s
Determination of question whether dismissal is fair or unfair (having regard to reason shown by
In the circumstances (including the size and administrative resources of the employer), whe
unreasonably in treating it as a sufficient reason for dismissing employee.
Determined in accordance with equity and the substantial merits of the case.
Statutory Test
Once employee has proven they have been dismissed and are eligible to make a claim, bu
who must satisfy that dismissal was for a 'potentially fair reason' - s98(1) and (2) Employme
It's then for an Employment Tribunal to consider the facts and assess the Reasonableness
s98 ERA 1996 - Sets out the 5 statutory reasons that can be fair.
Capability/Qualifications - s98(2)(a).
Conduct - s98(2)(b).
Redundancy - s98(2)(c).
Statutory restriction on employment - s98(2)(d).
Some other Substantial Reason - s98(1)(a).
No judgement as to 'reasonableness' or 'adequacy' of reason at this stage.
E.g., assaulting customer or theft is 'conduct' reason.
Being 5 mins late for work also 'conduct' reason.
If reason for dismissal not within s98 list, not a potentially fair reason.
E.g., dismissal because of ethnic background.
In this case, dismissal is unfair without having to look any further at reasonableness.
💡 Dismissal not automatically unfair, to claim, still need to have two years service.
If reason falls within one of s98 categories, tribunal then needs to assess reasonableness - Neu
s98(4) ERA 1996
Employer can show that reason is potentially fair, then tribunal will use s98(4) statutory test as s
Determination of question whether dismissal is fair or unfair (having regard to reason shown by
In the circumstances (including the size and administrative resources of the employer), whe
unreasonably in treating it as a sufficient reason for dismissing employee.
Determined in accordance with equity and the substantial merits of the case.
