The Law at Work

Unfair dismissal


The words “unfair dismissal” is a statutory expression which has no bearing on what common-sense would suggest, that was made clear by Phillips J in W Devis & Sons Ltd v Atkins [1976] 2 All ER 822 at 828, 11 ITR 15 at 22, QBD when he said:


’... the expression “unfair dismissal” is in no sense a common-sense expression capable of being understood by the man in the street, which at first sight one would think that it is. In fact, under the 1974 Act, it is narrowly and to some extent arbitrarily defined. And so the concept of unfair dismissal is not really a common-sense concept; it is a form of words which could be translated as being equivalent to dismissal “contrary to the statute” and to which the label ‘unfair dismissal’ has been given.’

The 1974 Act has been replaced by the Employment Rights Act 1996 (“the ERA”). The words “contrary to the statute” is a reference to sections 95 and 98 of the ERA which deals with the circumstances in which an employee may be dismissed. On the face of it, this means that a dismissal for any of the stated reasons for dismissal under sections 95 and 98 are potentially fair. In essence, the potentially fair reasons for dismissal happen when: 

  • a limited-term contract is terminated at the end of the term;

  • an employee terminates the contract due to the employer’s conduct;

  • there is some other substantial reason to justify a dismissal;

  • there is a dismissal due to capability or qualifications;

  • there is a dismissal due to the conduct of an employee;

  • an employee is made redundant;

  • an employee can not continue to work in contravention an enactment.

Under the provisions of section 98, whether or not a dismissal is unfair will depend on the circumstances (including the size and administrative resources of the employer) and whether the employer acted reasonably or unreasonably in treating the reason for dismissal as a sufficient reason for dismissing an employee and is to be determined in accordance with equity and the substantial merits of the case. 

The approach above permits an Employment Tribunal to look at the particular circumstances of each case which requires a broad analysis of the circumstances in accordance with equity and the substantial merits of the case.

This text deals with an analysis of unfair dismissal law which is dealt with under five categories as follows:

1. Is there an eligible claim?

2. Has there been dismissed in law?

3. Was the reason for dismissal one that fell within sections 95 and 98 of the ERA?

4. Did the employer acted reasonably in all the circumstances in treating that reason as sufficient to dismiss the employee?

5. If the dismissal was unfair, what remedies are available?

Gavin Booth

The Law at Work

19 Etive Court




G67 4JA