Alan McCormack | Senior Associate

Unfair Dismissal – Misconduct

The most common type of claim to be raised at the Employment Tribunal is that of unfair dismissal on the grounds of misconduct. This article outlines briefly the law surrounding misconduct dismissals.

Firstly, and most importantly, in order to raise a claim for unfair dismissal an employee is required to have 2 years of continuous service  as stipulated in section 108(1) Employment Rights Act 1996.

In order for a dismissal to be fair, an employer must have a potentially fair reason for the dismissal, and, the employer must have acted reasonably in treating that reason as sufficient to justify dismissing the employee.

Conduct is a potentially fair reason for dismissal.  Whether or not an employer has acted reasonably in treating conduct as a reason for dismissal will depend on all the circumstances, bearing in mind the size and administrative resources of the employer including the equity and the substantial merits of the case.

For the purposes of this test, it is irrelevant whether or not the Tribunal would have dismissed the employee had it been in the employer’s shoes.  The Tribunal must not substitute its view for that of the employer.  Rather, a tribunal must be persuaded that the employer’s decision fell within the reasonable range of responses and must assess the reasonableness of the employer’s conduct.  This was established in the case of Iceland Frozen Foods Ltd v Jones 1982 IRLR 439.

To establish that a dismissal was on the grounds of conduct, it must be established, as set out in British Home Stores Ltd v Burchell 1978 IRLR 379, that:-

  • At the time of dismissal, the employer believed the employee to be guilty of misconduct.
  • At the time of dismissal, the employer had reasonable grounds for believing that the employee was guilty of that misconduct.
  • At the time that the employer formed that belief on those grounds, it carried out as much investigation as was reasonable in the circumstances.

If you or anyone you know believes they have been unfairly dismissed then contact us today to arrange an initial free consultation, online by clicking here or speak to a member of our specialist team on 0333 222 1855.

Alan McCormack

Alan McCormack

Employment Law Team

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