Reasons for dismissal

Contents
1. Overview 2. Capability and qualifications 3. Conduct 4. Redundancy 5. Retirement 6. Acting illegally 7. Some other substantial reason 8. Statement of reasons for dismissal

You must be able to establish the only or principal reason for the dismissal. If you are unable to show that the dismissal was for one of the five permitted reasons, or you plead the wrong reason before the employment tribunal, the dismissal will be held to be unfair.

In determining whether a dismissal was fair or unfair, it is for you to establish that the only and principal reason for the dismissal relates to the following:

• Your employee's capability or qualifications to do the work of the kind for which he or she was employed
• The employee's conduct
• A redundancy
• The employee’s retirement
• The fact that the employee could not continue to work in the position held without contravening some statutory provision
• Some other substantial reason justifying the employee's dismissal from the position they were holding

Incapability or lack of qualification for which your employee is dismissed, must relate to the work that they were doing. In other words, the employee was incapable of doing the job by virtue of incompetence, or an inherent inability to perform the job. It also extends to an inability to do the job by reason of illness or injury. Therefore sickness may be reason to justify a dismissal.

This reason is fairly general and can cover virtually any form of misconduct, but would usually be misconduct within the employment. It would include, for example, disobedience of orders, breach of a duty of fidelity, dishonesty, fighting, sexual harassment, absence without permission, lateness and other breaches of contract or breaches of work rules.

To minimise potential liability for unfair dismissal, you should have a comprehensive set of disciplinary rules.

In addition to conduct within the workplace, dismissal for conduct outside employment, such as criminal offences committed elsewhere, will also provide a valid reason for dismissal. For such a dismissal to be fair, the outside misconduct must usually have an effect on the employment relationship.

For example, if your employee is a cashier and charged with a motoring offence, this should not have any effect on your working relationship. However, if the employee is charged with theft it could have a substantial effect on the employment relationship.

In order for you to rely on misconduct to justify a dismissal, the misconduct must have been known to you at the time of the dismissal. You cannot rely on subsequently discovered misconduct to justify the dismissal. In other words, if your employee is dismissed for a reason that is unfair, and subsequently you find out that he or she has committed some serious offence, you cannot rely on the later conduct when giving reasons for the dismissal.

However, if you are notified of some serious offence prior to the dismissal but after giving notice of termination of employment, you are entitled to use that conduct in justifying the dismissal.

Redundancy is a potentially fair reason for dismissing your employee. See the section on redundancy for more information.

If an employee is either:

• aged 65 (the current national default retirement age) or over; or
• at or over the employer’s normal retirement age (where that is over 65);

then, provided that an employer follows the statutory retirement procedure, the employee can be fairly dismissed on the grounds of retirement.

The statutory retirement procedure includes the following steps:

1. Issue the employee with a retirement notice at least 6 months but not more than 12 months before the employee’s 65th birthday (or the intended retirement date if later).

2. Advise the employee of his/her right to request to work beyond the intended retirement date. If requested, the employer must meet with the employee. The employer does not need to give reasons for refusing the employee’s request.

3. Offer and hold an appeal if requested by the employee.

This covers a situation where it becomes illegal either for your employee to work in the position held, or for you to employ him or her in that position. One of the more common types of dismissal for this reason is where your employee is a driver of a motor vehicle. The court disqualifies the employee from driving because of a motoring offence. The employee is therefore not in a position to drive a motor vehicle.

This is a separate category, but the onus of proof is on you to show that it is for some other reason that you justifiably dismissed your employee. For example, your employee marries a competitor. In these circumstances, depending upon where your employee works, his or her normal participation in corporate decisions and the nature of your business, there may be a real risk of a leak of trade secrets.

If your employee has been continuously employed for at least one year, they are entitled to request a written statement from you of the reasons for the dismissal, within 14 days of the request. The statement will be admissible in evidence in any proceedings.

In the case of a woman, if she is dismissed while pregnant or during a maternity period, she is entitled, without prior request, to a written statement. Should you fail to comply with the request, the employee may present a complaint to the employment tribunal.

The time limit to present the complaint is generally three months from the date of termination. If the complaint is well founded, a tribunal must order you to pay two weeks' pay. There is no upper limit on the amount earned per week.