Dismissal

by Kate Russell

Fairness and reasonableness

An employer must act reasonably in all the circumstances in treating the reason for dismissing the employee as a sufficient reason for the dismissal. In other words, not only must the employer have a valid reason for the dismissal, but also he must have acted reasonably in all the circumstances entailed in dismissing the employee for that particular reason. The question whether the employer acted reasonably not only involves consideration of the way in which the dismissal was carried out, but also whether he acted reasonably in relation to the situation leading up to the decision to dismiss the employee. For example, if the employee was dismissed for misconduct or lack of capability, it is necessary to consider whether he was warned and given a chance to improve or, if redundancy was the reason for dismissal, whether the employee was considered for alternative work within the same organisation.

The sorts of questions that will be considered should the matter come before a tribunal are listed below.

  • Was the employee given a fair hearing by the employer?
  • What evidence was used at the hearing and was it all used?
  • Did the employee have a representative at the hearing or a trade union official?
  • If there was more than one employee involved, were they all treated in the same way?
  • Had the employee done this before?
  • Did the employer consider warnings? Were these used in the past?
  • Did the employer consider the overall performance of the employee? For example, did the employee previously have a long record of good work and behaviour?
  • Could the employer have disciplined the employee instead of dismissing him?
  • Did the employee have an effective right of appeal against the decision?
  • Was the whole procedure carried out in the same way as previous procedures, if not how did it differ and why?
  • Was the conduct of the employee looked into thoroughly?
  • Did the employer believe that the employee committed the offence?

ACAS

The ACAS Code of Practice 1 is the benchmark of best practice and gives employers practical advice on how to deal with disciplinary matters in a way which is fair and can be seen to be fair by their employees.

The ACAS Code is a statutory code and tribunals will take into account any provision of the code which appears to them to be relevant to any question before them and will consider whether or not an employer has followed it. It should be read in conjunction with the Guidance, which is non-statutory.