All’s Fair?

Being ‘fair’ is, according to to Cambridge Online dictionary, the act of treating someone in a way that is right or reasonable.’ That being the case when the Employment Rights Act 1996 boldly asserts that every  employee “has the right not to be unfairly dismissed by his employer” it looks like Parliament made an expansive and meaningful law in defence of workplace justice.

A closer look will show that by a series of ‘ifs and buts’ the expansive right against unfair dismissal has been whittled down to a much smaller proportion of the UK workforce applying only to employees and not workers, excluding major public service workers like the armed forces and police, only those who have been employed for two years or more, etc. In the interests of plain English section 94 of the Employment Relations Act should perhaps read “some employees have the right not to be unfairly dismissed by her employer.”

However, one of the more important lessons I have learned representing employees and applying employment law to their situations is that even for those who do have this right not to be ‘unfairly’ dismissed the concept of fairness really is not the focus of unfair dismissal law. If it were, the focus of the unfair dismissal decision would be on whether the decision to dismiss was justified but, instead it is on whether in the mind of the decision maker acted reasonably by making a decision that was within a ‘range’ of allegedly reasonable decisions they could have made.

And so, as it has been applied by the courts there is nothing intrinsically unfair in an employee being dismissed from a job for misconduct even if the tribunal can categorically see that the employee was not guilty of the alleged infraction so long as at the time (perhaps before the evidence was available) the employer acted reasonably at the time of dismissal. Or, to use a real life example (Parr v Whitbread [1990] IRLR 39), there is nothing intrinsically unfair in an employer dismissing four employees because the employer thinks one has probably stolen from them but they cannot tell which one (if any). It is ‘fair’, so says the EAT, for the employer to dismiss all four employees, potentially placing four or more families into poverty, despite knowing three are innocent and the other may be as well.

Such a scenario is, far from being fair, actually fairness’ antithesis. What an employee has is not the right not to be unfairly dismissed but the right to be dismissed for a ‘potentially fair reason’ so long as some imprecise procedural formalities are adhered to by the employer. I cannot help but think the UK population have been sold a dud, they either don’t join a union or if they do, only do so on a insurance basis believing if their employers treat them unfairly there is an adequate redress in unfair dismissal law when there isn’t.

I recall one case in which an employee was unfairly dismissed, victimised on the basis of trade union activities in fact. The union, rightly, adopted an industrial response and strike ballot in response alongside legal challenge. The employer’s inevitable response in dissuading workers from voting to take industrial action was to say that if said employee felt he had been treated unfairly he could complain to a tribunal that he had been unfairly dismissed. In the rare cases of an industrial response to a dismissal this is I am sure a common response depending on workers not looking too closely what ‘fairness’ really means.

Of course a major impetus for the establishment of the employment tribunal system was to move disputes from the industrial to the tribunal arena and there is no doubting that has happened. In view of the inadequacy of employment law to deliver on the grand claims that there is a right not to be unfairly dismissed perhaps it is time to start making industrial responses to unfair dismissals a more central plank of union organising alongside lobbying for laws that protect workers from dismissal and warnings that actually place fairness at their core.