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William Slivinsky

Five most common signs of unfair dismissal ?

Updated: Jun 30

The five most common signs of unfair dismissal can be identified through a combination of legislative frameworks, case law, and secondary materials. These signs include lack of a fair reason for dismissal, failure to follow proper disciplinary procedures, inadequate investigation into alleged misconduct, dismissal not falling within the "range of reasonable responses," and discrepancies in treatment among similarly situated employees.


To enhance comprehension of the context, it is crucial to review the main case law presented below along with each sign individually explained.


1.The lack of fair reason for dismissal - it is important to recognize that although the rationale for disciplinary measures taken against you may appear valid initially, the crucial question is whether this basis is truly fair and genuine or if it is simply a veiled attempt to dismiss you for other reasons, such as past grievances, requests for flexible working hours, or concerns you have raised regarding Health and Safety. Essentially, if you are facing disciplinary actions that could result in dismissal, it is advisable to step back, consider alternative motives for which you may have become a nuisance to the employer, and attempt to uncover them during hearings and in documented records. If you notice a one-sided approach in these proceedings, it is probable that the employer has orchestrated an exit strategy against you.


The lack of fair reason might be idenfified within the process of investigation and disciplinary procedure. It is well explain in the case of Royal Mail Group Ltd v Jhuti available below.



2.Failure to follow proper disciplinary procedures - when your case progresses to the Employment Tribunal, it's crucial to prioritize your own contractual procedures over the ACAS best code of conduct. Failure by your employer to adhere to their own disciplinary process could indicate a knee-jerk reaction, suggesting personal rather than disciplinary motivations. This impulsive approach may lead to a chaotic and hasty process that overlooks your valid arguments. If you observe such behavior from the disciplinary team, it's likely they are acting on personal biases rather than fair reasoning.


Ms K Bonk v Lainston House Ltd the court ruled that although the employer had valid reasons to terminate the employee, they did so unfairly by not following the proper procedure. Ms. Bonk was granted compensation, albeit with a deduction. The Tribunal determined that even if the employer had followed the correct procedure, she would have been dismissed only about two weeks later.

3.Inadequate investigation into alleged misconduct - is a common occurrence in situations involving knee-jerk reactions, exit agendas, or personal biases. This becomes evident when reviewing an investigation report, especially if you were not invited to the initial hearing and provided with the reasons for the investigation. If your employer questions you without prior notification and adequate preparation time, it is likely that you are being set up for dismissal. A fair investigation should explore both sides of the issue - one that may implicate you in misconduct and another that aims to prove your innocence. If you find that your arguments are not being properly considered, it indicates an inadequate investigation, and you should watch for other indications of unfair termination.


Royal Mail Group Ltd v Jhuti held that if a person in the hierarchy of

responsibility above the employee determines that she should be dismissed for

a reason but hides it behind an invented reason which the decision-maker

adopts, the  reason for the dismissal is the hidden reason rather than the

invented reason.


This approach can also be applied to any other situation besides the one in this specific case. If you discover the true cause of your termination, which differs from the one given at the time of dismissal, you will need to provide evidence of this in court.


4.Dismissal not falling within the "range of reasonable responses -The concept of a dismissal that does not fall within the "range of reasonable responses" refers to a scenario where an employer's decision to terminate an employee is considered unreasonable by an employment tribunal. This judgment is based on the premise that no reasonable employer would have taken the same action under similar circumstances. The evaluation of such a dismissal involves an assessment of both the procedural and substantive aspects of the case. Essentially, it entails posing a question to another reasonable business owner: Would they have made the same decision to dismiss an employee for the same reason, given the same circumstances? For instance, an employer dismisses an employee for gross misconduct that is not outlined in the disciplinary procedure, such misconduct never been addressed by the company before, and dismisal is followed by unfair investigation, does this dismissal fall within the realm of reasonable responses? - clearly NOT !


Case law which provides rich insights into the application of the "range of reasonable responses" test. For instance, in I Drury v Ministry of Defence (2301312/2020), the Employment Tribunal emphasized that the test applies to both the decision to dismiss and the procedure leading to it, stating, "The Tribunal must not substitute its own view for that of the employer, but must consider whether the decision to dismiss was one of the reasonable responses open to an employer in the circumstances."


5. Discrepancies in treatment among similarly situated employees - whenever an employer decides to terminate an employee for gross misconduct, it is important to be consistent in how other employees who have faced similar accusations are treated. Therefore, it is crucial to start by reviewing the disciplinary procedure for each case. Under the gross misconduct section, a responsible employer should clearly define common misconducts and any previous instances the company has addressed it before. If the misconduct you are accused of is not listed in the disciplinary procedure, it could indicate that the employer has not encountered it before. The key question in this situation is how the employer can ensure fair treatment if you are the first to face such an accusation. During the hearing, it is essential to inquire whether anyone else has faced similar allegations, why they are not documented in the procedure, and what disciplinary actions were taken in those cases. If the employer avoids answers to your questions it may be used as evidence of unfair procedure. So, asking difficlut questions throughout procedure is crucial in identifying all five signs of unfair dismissal.


Discrepancies in treatment among similarly situated employees in the context of unfair dismissal are addressed through various legislative frameworks and judicial interpretations. These legal provisions ensure that dismissals are conducted fairly and equitably, considering the circumstances of each case and the treatment of comparable employees. Key legislation such as the Employment Rights Act 1996 and case law including Orr v Milton Keynes Council provide foundational principles for assessing fairness in dismissals, emphasizing the importance of consistent and non-discriminatory treatment among employees.


The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. You can request a consultation or get answers on our forum >>>

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