the reason for the dismissal

The reason for a dismissal is simply the set of facts known to the company or beliefs held by the company that caused it to dismiss the employee. Facts that the company discovered only after deciding to dismiss cannot provide a reason for dismissal. They may, however, be taken into account by an employment tribunal when it is calculating what compensation to award the employee, if the dismissal is found unfair (reductions to basic award ), (reducing the award ).

Evidence as to the reason

It is important for a company to be clear about its reasons for dismissing an employee. It must be in a position to prove the reason for the dismissal. If it cannot do so, the dismissal may be found unfair. If the company gave the employee written reasons for his or her dismissal, then that document can be used as evidence of the reason for dismissal (setting out reasons ).

In a constructive dismissal case, the reason for the dismissal is the reason why the company breached the employee's contract, entitling the employee to resign. A constructive dismissal is not necessarily an unfair dismissal. A constructive dismissal involves the employer acting in serious breach of contract, whereas a dismissal is unfair if the employer did not act reasonably in deciding to dismiss. An employment tribunal hearing an unfair constructive dismissal claim might accept that, even though the employer had seriously breached the employee's contract, it had acted reasonably in all the circumstances.

When establishing the reason for the employee's dismissal, no account can be taken of the fact that the company was pressurised into dismissing the employee through industrial action or the threat of it.

Automatically unfair reasons for dismissal

There are some reasons for dismissal that the law regards as automatically unfair. Some of these are dealt with in more detail in other sections of this Guide. The purpose behind many of these categories of automatically unfair dismissal is to give employees protection if they exercise certain functions or assert the rights that they have under employment legislation. In addition, the law makes it automatically unfair for an employer to dismiss an employee without first following a statutory minimum dismissal procedure, regardless of the reason for the employee's dismissal ( minimum dismissal procedures ).

It is automatically unfair to dismiss an employee, or select an employee for redundancy, if the sole or main reason for the dismissal is connected with:

1. The employee's pregnancy or maternity (unfair dismissal ).
2. The fact that the employee has taken maternity leave, paternity leave, adoption leave, parental leave or time off to care for dependants or applied for flexible working ( Family rights ).
3. The employee's trade union membership or non-membership or trade union activities (dismissal on union grounds ).
4. The fact that the employee is taking part in properly balloted industrial action, in certain defined circumstances (first eight weeks ).
5. The employee's functions as an employee representative for the purposes of:
   
   - collective consultation on redundancies (collective consultation); or
   
   - collective consultation on a business transfer (informing and consulting); or
   
   

   - negotiation or consultation under the Information and Consultation of Employees Regulations 2004 ( duty to inform and consult); or
   
   - the transnational works councils legislation (detriment and dismissal ); or
   
   - workforce agreements under the Regulations on working time (flexibility by agreement ), parental leave (parental leave) or fixed-term employees (written statement ); or
   
   - consultation on pension changes (pension changes).

6. The fact that the employee is or has been a candidate for election as an employee representative ( legal rights of representatives).

7. The employee's functions as a pension scheme trustee (rights of employee trustees).

8. The fact that the employee supported or opposed a trade union's claim for recognition under the statutory recognition procedure (protection for employees ).

9. The fact that the employee has asserted his or her rights under employment legislation (asserting legal rights), including the legislation on the national minimum wage (the national minimum wage), working time (working time regulations), part-time workers (part-time workers regulations ), fixed-term employees (victimisation) and the right to be accompanied at a disciplinary or grievance hearing (the right to be accompanied ). It is also automatically unfair to dismiss an employee for accompanying a colleague to a hearing.
10. The fact that the employee has 'blown the whistle' on certain forms of wrongdoing ( Protection for 'whistleblowers' ).
11. The fact that the employee has carried out certain health and safety duties, raised safety concerns or taken steps in response to serious health and safety hazards (health and safety concerns).
12. The fact that the employee is entitled to Working Tax Credit.
13. The fact that the employee has been summoned for, or undertaken jury service (protection for employees on jury service).
14. The transfer of a business or part of a business or a service provision change (protection from dismissal).

Although the unfair dismissal legislation does not state this expressly, a dismissal that is in breach of the discrimination legislation is almost certain to be an unfair dismissal. Likewise, it is almost certainly unfair to dismiss an employee because he or she has a conviction that is 'spent' under the Rehabilitation of Offenders Act 1974 (spent convictions ).

Potentially fair reasons for dismissal

In order for a dismissal to be potentially fair, the employer must be able to show that the employee was dismissed for a reason that fits within one of the following categories. It is important to remember, however, that the fact that the reason for the dismissal falls within one of these categories does not necessarily mean that the dismissal was fair. The fairness of the dismissal depends on whether the company acted reasonably in treating the reason as a sufficient reason to dismiss the employee, as discussed elsewhere(did the company act reasonably?).

The potentially fair categories are these:

1. Employee's capability
   Capability includes the employee's skill, aptitude, health or any other physical or mental quality. This category will cover, for example, the case of an employee who was dismissed for a poor sickness absence record. It would also cover a dismissal for poor performance, if this were due to the employee's lack of ability. (An employee dismissed for poor performance that was due to a lack of application or carelessness on the employee's part is likely to have been dismissed for a reason relating to the employee's conduct, another potentially fair category of reason for dismissal, mentioned below.)
2. Employee's qualifications
   It is potentially fair to dismiss an employee for not having the qualifications for performing work of the kind he or she was employed to do. Qualifications include any degree, diploma or other academic, technical or professional qualification that was relevant to the position that the employee held. So this category could, for example, cover the case of an employee who was recruited as a health and safety adviser on the basis that he or she had, or would soon obtain, a certain safety diploma and was dismissed because it transpired that he or she did not possess that qualification, or was unlikely to be able to obtain it in the near future.
3. Employee's conduct
   This means any conduct of the employee, whether in the course of work or outside it, that reflects in some way on the employment relationship. This category would therefore cover cases of dismissal for misconduct and for criminal offences outside work that are relevant to the employee's job.
4. Redundancy
   It is important to be aware that a redundancy can be challenged as an unfair dismissal if the company did not act reasonably in implementing the redundancy. The definition of redundancy and other legal and good practice issues relating to the implementation of redundancies are discussed elsewhere in this Guide (redundancy).
5. The employee could not continue in his or her job without the company or the employee breaking some duty or restriction imposed by legislation
   This reason would apply, for example, if the individual worked as a driver and was dismissed because he or she was disqualified from driving. For this reason to apply, the company must be able to show that it would actually have broken some legal duty or restriction by continuing to employ the employee, not merely that it thought it would.
6. Some other substantial reason
   The employee was dismissed for some other substantial reason of a kind that justified the dismissal of an employee doing the job that the employee did. This category is likely to cover a dismissal for any substantial and legitimate business reason that does not fall in one of the categories mentioned above. For example, it could apply to the dismissal of an employee who refused to agree to new terms and conditions of employment. It could also apply if an employee is dismissed because of pressure from a customer or because of a personality conflict with another employee. If a company recruits an employee to cover another employee's maternity leave, maternity suspension or adoption leave and informs the replacement in writing when he or she is recruited that he or she will be dismissed when the other employee returns to work, then the legislation says that the company has a substantial reason for dismissing the replacement to make way for the returning employee.