In unfair dismissal law a dismissal can only be fair if the reason for dismissal is for one of five potentially fair reasons for dismissal. In an unfair dismissal claim before the tribunal can consider whether a dismissal was reasonable it must be satisfied that the dismissal was for a potentially fair reason. Only if a tribunal accepts that the reason for dismissal is a potentially fair one – and the burden is on the employer to show this – can there be a subsequent consideration of reasonableness. If there is no fair reason demonstrated then the dismissal will be unfair. Section 98(1) and (2) set out the five potentially fair reasons for dismissal: 1) capability or qualification, 2) conduct, 3) redundancy, 4) legal obligation, and 5) some other substantial reason.
Usually this is not an issue of contention but sometimes an employee can challenge the reason given by the employer and suggest it was not the real reason (the sorry case of Aslef v Brady is a case in point). The relatively recent increase in the qualifying period for unfair dismissal to two years has effectively increased the number of cases where the reason for dismissal is challenged by employees because this opens up a possibility of still having standing to bring other automatic unfair dismissal claims (e.g., whistleblowing dismissals).
The recent case of Upton-Hansen Architects v Gyftaki 2019] UKEAT 0278_18_0905 introduces a useful reminder of the importance of the employer’s burden of proof for establishing a reason for dismissal. In this case the claimant got into a dispute with her employer over whether the employer had given her permission to take annual leave. This resulted in a disciplinary investigation and suspension from work. Shortly before the hearing she resigned, claiming constructive dismissal in that her suspension was a fundamental breach of contract and pursued an unfair dismissal claim. In an unfair dismissal context if this resignation was a response to a fundamental breach of contract then it would be a dismissal (section 95(1)(c) of the Employment Rights Act 1996). This means that if there was a dismissal whether or not this is an unfair dismissal would also need the reason to be for a potentially fair reason.
In its response to the claim the employer denied all the claims in their entirety but did not make any submissions on what the reason for dismissal. The employment tribunal found that the suspension was unreasonable and in breach of the duty of trust and, noting that the employer had not suggested that there was a potentially fair reason for dismissal found the employer’s burden of roof had not been met and the dismissal was therefore unfair (conceivably a some other substantial reason could have been put forward).
The relevance of this case will be most relevant in constructive unfair dismissal claims. This is because it emphasises the test to establish a successful is not limited to an assessment of whether there was breach of contract and a dismissal but that the employer must also show a potentially fair reason for dismissal and, if they don’t, this can assist an employee in their claim that a dismissal was unfair. However, it is also conceivable that an employer’s response to a claim could also fail to suggest a fair reason for dismissal or mis-describes it – in such a case this may still allow an employer to succeed in a case (as the case recently in Burdis v Dorset County Council  UKEAT 0084_18_0308) but this should still be a useful omission to challenge the competence of a tribunal to consider the reasonableness of a dismissal (since reasonableness can only be considered once the employer’s burden pf proof has been met).