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An employer must show that the employee has been fairly selected.
Merely giving the appropriate contractual notice, and showing that a S98 reason applies will not suffice.In Gorfin v Distressed Gentlefolks’ Aid Association (1973), a personality clash was sufficient to render dismissal fair in order to restore harmony to the workplace, where all other reasonable steps had been taken to resolve the situation.Economic reasons may also fall within this heading, if an employer could show that these were based on good commercial practice.Conduct in an employees spare time may also justify dismissal if it reflects adversely on the employee’s suitability for a job – such as theft.Sleeping with the wife of the employer outside office hours was held to justify dismissal in Whitlow v Alkanet Construction (1987) However, if the lack of capability is caused through the fault of the employer, for example, through its failing to provide training or supervision, the dismissal would be unfair.If an employee is found to have breached this procedure, the dismissal is automatically unfair.
In addition, there will be an extra award of four weeks pay, if a tribunal finds that not to be unjust to the employer.
(This reverses the rule in Polkey v Dayton Services Limited.) The detail of how the procedures would operate in practice was set out in secondary legislation, the Employment Act 2002 (Dispute Resolution) Regulations 2004.
The basic standards are defined in Schedule 2 as: 1) The employer must set outline writing the employees alleged conduct, or characteristics, or other circumstances which lead him to contemplate dismissal or disciplinary action.
These situations include a claim for dismissal in connection with the exercise of maternity rights; dismissal relating to whistle blowing; accompanying workers at a disciplinary hearing; trade union membership or activity; or for taking legal action against an employer to enforce statutory rights.
For a dismissal to be fair, an employer must also show that it followed a fair procedure.
Section 34 of the Employment Act 2002 inserted a new Section 98A into the Employment Rights Act 1996.