Wilsons Solicitors

Unfair dismissal does not mean unfair in the opinion of the person who has been dismissed. Most people who have been dismissed think that it's jolly unfair, but what the tribunal has to decide is whether a dismissal was unfair from the point of view of a hypothetical reasonable employer.

Employment tribunals generally work on the basis that employers are human beings and might have different opinions about the same things, but just because another employer might have a view which is different from the one that this employer took in dismissing somebody does not automatically make that dismissal unfair in legal terms. In essence the question a tribunal has to decide is not whether they think this particular dismissal was unfair, but whether most employers, who are presumed to be reasonable chaps, would consider this dismissal to be unfair.

This tends to mean in practice that it is not terribly difficult for an employer to defeat an unfair dismissal claim, provided the employer can demonstrate that they have acted with complete good faith throughout. This is because an employer who has acted in good faith will doubtless have good reason, or at least reason that seems to him to be good enough to dismiss and will have given the employee a fair crack at the whip of explaining themselves or improving their performance, or whatever it may be, and that will be enough to satisfy a tribunal. That is what reasonable people do.

There are however certain situations where a dismissal will be deemed by a tribunal to be automatically unfair irrespective of the circumstances. There are various of these, and they tend to be tied in with the law relating to discrimination.

If a dismissal, however well intended and in good faith it is, is actually when you boil it down for a reason that is discriminatory then it will be automatically unfair. It will also give the claimant a completely separate right to sue for that discrimination as well as for the unfair dismissal that resulted from it.

Discrimination now comes under various headings. Sex discrimination and race discrimination have been with us for many years, more recently categories have been added of age, disability, sexual orientation and religion, for example, and it's also against the law to treat an employee worse than they would have been treated if they had not stood up for their worker's rights. Any dismissal or other disciplinary action, for any of these reasons it is illegal, however honest or well intended it might have been.

Bear in mind that discrimination does not have to be deliberate in order to be illegal. For example, if an employer sacks an employee because they are Asian, that is what the law calls direct discrimination, and it is illegal.

If the employer decides to be a bit sneaky about it and sack that employee on the grounds that he wears a turban, he will not get away with claiming that that is not race discrimination, just because (he says) he would have equally sacked a white man wearing a turban. This is because we all know that turban wearers are predominately Asians. This is what the law calls indirect discrimination, and it's just as illegal as the direct sort.

It is equally just as illegal whether it is done deliberately in the example just given, or whether it is done completely innocently. So for example, if this employer genuinely doesn't like turbans and genuinely would have sacked anybody wearing a turban, irrespective of colour, and genuinely never realised that there were any racial implications. That does not make any difference. It's still indirect discrimination and still illegal. Ignorance is no excuse.

Unfair dismissal claims are brought in the employment tribunal. You can read all about employment tribunals elsewhere on this website.