148 9: Dismissal and redundancy Part C Employment law
6.1.2 Misconduct
It is usual to apply the common law distinction between gross misconduct, which justifies summary
dismissal on the first occasion and ordinary misconduct, which is not usually sufficient grounds for
dismissal unless it is persistent.Illustration^
Assault on a fellow employee, conduct exposing others to danger (for example, smoking in an area
prohibited for safety reasons), unpleasant behaviour towards customers and persistent absences from
work have been treated as sufficient misconduct to justify dismissal.6.1.3 Redundancy
If an employee is dismissed mainly or only on the ground of redundancy, they may claim remedies for
unfair dismissal if they can show one of the following.
(a) There were other employees in similar positions who might have been made redundant and that
selection for redundancy was in breach of a customary arrangement or agreed procedure.
(b) He was selected for a reason connected with trade union membership.
A redundancy selection procedure should be in conformity with good industrial relations practice which
requires consultation and objective criteria of selection. The criteria set out by the EAT in Williams v
Compair Maxam Ltd 1982 have been accepted as standards of behaviour.
(a) The employer should give as much warning as possible of impending redundancies.
(b) The employer should consult with the trade union as to the best means of achieving the desired
management result.
(c) It should be possible to check criteria for selection against such things as attendance records,
efficiency at the job and length of service.
(d) The employer should ensure that the selection is made fairly.
(e) The employer should consider whether an offer of alternative employment can be made.6.1.4 Other substantial reason
The category of other substantial reason permits the employer to rely on some factor which is unusual
and likely to affect them adversely. An employer has justified dismissal on specific grounds.
(a) The employee was married to one of their competitors.
(b) The employee refused to accept a reorganisation. For example, a change of shift working made in
the interests of the business and with the agreement of a large majority of other employees.6.1.5 Automatically fair reasons for dismissal
Other reasons are designated as being automatically fair by legislation.
Taking part in unofficial industrial action
Being a threat to national security (to be certified by the government)
An employee who strikes or refuses to work normally may be fairly dismissed unless the industrial action
has been lawfully organised under the protection conferred by the Employment Relations Act 1999.
Where dismissal results from a lock-out or a strike, the tribunal cannot deal with it as a case of alleged
unfair dismissal unless victimisation is established.