Fair Reasons for Dismissal in the UK
What counts as a fair reason to dismiss an employee? Learn about the 5 potentially fair reasons and what employers must prove.
For a dismissal to be fair, employers must have one of five potentially fair reasons and follow a fair procedure.
The Five Potentially Fair Reasons
1. Capability
Inability to do the job due to:
- Skill or aptitude: Lacking necessary abilities
- Health: Physical or mental health preventing work
- Qualifications: Losing required certification
Before dismissing for capability:
- Provide training and support
- Set clear improvement targets
- Allow reasonable time to improve
- Consider alternative roles
2. Conduct
Behavior that breaches rules or standards:
- Misconduct: Breach of rules, policies, or standards
- Gross misconduct: Serious enough to justify summary dismissal
- Repeated minor misconduct: Pattern of behavior
The ACAS Code of Practice must be followed for conduct dismissals.
3. Redundancy
When the job no longer exists:
- Business closure
- Workplace closure
- Reduced need for employees doing particular work
Must follow fair selection criteria and consult properly.
4. Statutory Illegality
Continuing employment would break the law:
- Lost driving license (for driving roles)
- Lost right to work in UK
- Lost professional registration
- Work visa expiration
Must explore alternatives before dismissing.
5. Some Other Substantial Reason (SOSR)
A genuine, substantial reason not covered above:
- Business reorganization
- Personality clashes
- Third-party pressure for dismissal
- Refusal to accept contract changes
- Breakdown in trust
Courts scrutinize SOSR claims carefully.
The Two-Stage Test
Stage 1: Is There a Fair Reason?
Employer must show the reason falls within one of the five categories.
Stage 2: Was Dismissal Fair?
Even with a fair reason, the tribunal asks:
- Did employer act reasonably in treating the reason as sufficient?
- Was a fair procedure followed?
- Was dismissal within the range of reasonable responses?
Burden of Proof
| Issue | Who Must Prove |
|---|---|
| Reason for dismissal | Employer |
| Dismissal was unfair | Neutral - tribunal decides |
| Automatically unfair reason | Employee |
| Discrimination | Employee (initial evidence) |
What Employers Must Show
Investigation
- Reasonable investigation conducted
- Relevant evidence gathered
- Employee given chance to respond
Procedure
- ACAS Code followed (for conduct/capability)
- Warnings given where appropriate
- Right to be accompanied at hearings
- Appeal opportunity offered
Decision
- Decision was reasonable based on evidence
- Alternatives to dismissal considered
- Sanction was proportionate
Range of Reasonable Responses
The tribunal doesn't substitute its own view. It asks whether dismissal was within the range of responses a reasonable employer might take.
Different employers might reasonably reach different conclusions on the same facts.
Automatically Unfair Reasons
Some reasons are always unfair, regardless of procedure:
- Pregnancy or maternity
- Asserting statutory rights
- Whistleblowing
- Trade union activities
- Health and safety complaints
- Jury service
- Certain types of leave
Written Reasons
After 2 years' service, employees can request written reasons:
- Request can be made anytime
- Employer must respond within 14 days
- Failure can result in compensation
- Pregnant employees/those on maternity leave can request without service requirement
Reasonableness in Practice
What Makes Dismissal Reasonable
- Thorough investigation
- Clear policy breached
- Consistent treatment of similar cases
- Opportunity to explain/improve
- Alternatives considered
- Proportionate response
What Makes Dismissal Unreasonable
- No or inadequate investigation
- Predetermined outcome
- Inconsistent with past cases
- No opportunity to respond
- No consideration of alternatives
- Excessive sanction
Frequently Asked Questions
- What are the 5 fair reasons for dismissal?
- The 5 potentially fair reasons are: capability (including health), conduct, redundancy, statutory illegality (e.g., losing right to work), and some other substantial reason (SOSR). Even with a fair reason, the dismissal must also follow a fair procedure.
- Can you be dismissed without a reason?
- Employers don't have to give a reason if you have less than 2 years' service (unless dismissal is automatically unfair, like for whistleblowing). After 2 years, you can request written reasons and employers must respond within 14 days.
- What makes a dismissal unfair even with a fair reason?
- Even with a fair reason, dismissal is unfair if the employer didn't follow a fair procedure, didn't investigate properly, or the decision wasn't within the range of reasonable responses.