Part C Employment law 9: Dismissal and redundancy 145
5.2 Making a claim
There are four steps to making a claim for compensation for unfair dismissal.
Step 1 The employee must apply to a tribunal within three months of dismissal
Step 2 The employee must show that they are a qualifying employee and that they have in fact
been dismissed.
Step 3 Then the employer must demonstrate:
(a) What was the alleged only or principal reason for dismissal
(b) That it was one of the statutory fair reasons for dismissal or was otherwise a
'substantial reason of a kind such as to be capable of justifying the dismissal of an
employee' in this position.Step 4 Then the tribunal must decide if the principal reason did in fact justify the dismissal and
whether the employer acted reasonably in treating the reason as sufficient.
If the employer cannot show that the principal reason allegedly justifying the dismissal was one of the fair
reasons given in statute the dismissal is unfair.
Dismissal may be identified in three separate circumstances.
(a) Actual dismissal can usually be clearly recognised from the words used by an employer.
(b) Constructive dismissal, as described earlier, involves a fundamental breach of the employment
contract by the employer.
(c) Expiry of a fixed-term contract without renewal amounts to a dismissal.
The employee must show that they have in fact been dismissed. The courts often have to debate whether
or not the use of abusive language by employers constitutes mere abuse or indicates dismissal.
5.3 The reason for dismissal
As noted above, if the principal reason for dismissal was not one of the statutory fair reasons, then
dismissal will be unfair. However, even if the employer shows that they dismissed the employee for a
reason which is recognised as capable of being sufficient, a tribunal may still decide that the dismissal
was unfair. It may do this if it considers that on the basis of equity and the merits of the case, the
employer acted unreasonably in dismissing the employee.
5.3.1 Reasonableness of employer
The employment tribunal is required to review the circumstances and to decide whether it was reasonable
to dismiss the employee for the reasons given.
Determining whether the employer has acted reasonably requires the tribunal to ask:
Has the correct procedure been applied?
Did the employer take all circumstances into consideration?
What would any reasonable employer have done?
The employer does not act reasonably unless they take account of the relevant circumstances. If an
inexperienced employee is struggling to do their work, the employer is expected to help by advice or
supervision in the hope that they may improve.
The emphasis placed on giving one or more warnings before dismissing is partly so that the employee
may heed the warning and amend their conduct or their performance.