ACCA F4 - Corp and Business Law (ENG)

Part C Employment law  9: Dismissal and redundancy 147

6 Unfair dismissal – justification of dismissal

Dismissal must be justified if it is related to the employee's capability or qualifications, the employee's

conduct, redundancy, legal prohibition or restriction on the employee's continued employment or some

other substantial reason.

Dismissal is automatically unfair if it is on the grounds of trade union membership or activities, refusal to

join a trade union, pregnancy, redundancy when others are retained, a criminal conviction which is 'spent'

under the Rehabilitation of Offenders Act 1974 or race or sex.

6.1 Potentially fair reasons for dismissal

To justify dismissal as fair dismissal, employers must show their principal reason relates to either:

(a) The capability or qualifications of the employee for performing work of the kind which they were

employed to do

(b) The conduct of the employee

(c) Redundancy

(d) Legal prohibition or restriction that prevents the employee from lawfully working in the position

which they held. For example, if a doctor is struck off the relevant professional register, or an

employee loses their driving licence which they need to be able to do their job.

(e) Some other substantial reason which justifies dismissal

6.1.1 Capability/qualifications

If the employer dismisses for want of capability on the part of the employee, the employer has to

establish that fault.

 What does the contract require?

 What is the general standard of performance of their employees in this trade?

 What is the previous standard of performance of the dismissed employee themselves?

If the employee is incompetent it must be of such a nature and quality as to justify dismissal. For example

a shop manageress who left her shop dirty and untidy and who failed to maintain cash registers: Lewis

Shops Group Ltd v Wiggins 1973.

'Capability' is to be assessed by reference to skills, aptitude, health or any other physical or mental

quality. 'Qualification' means any academic or technical qualifications relevant to the position that the

employee holds. 'Reasonableness' on the part of the employer is required, for example:

 Consultation with the employee to determine areas of difficulty

 Allowing a reasonable time for improvement

 Providing training if necessary

 Considering all alternatives to dismissal

If the employer relies on ill health as the grounds of incapability there must be proper medical evidence.

The employer is entitled to consider their own business needs. A reasonable procedure involves cautions,

confrontation with records and the granting of a period for improvement.

International Sports Ltd v Thomson 1980

The facts: The employee had been away from work for around 25% of the time, suffering from a number

of complaints all of which were certified by medical certificates. She received a number of warnings. Prior

to dismissal the company consulted their medical adviser. As the illnesses were unrelated and

unverifiable, he did not consider an examination worthwhile. She was dismissed.

Decision: The dismissal was fair.

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