The real reason for your dismissal must match the stated reason.
“Court of Appeal upheld dismissal, holding the real reason was capabilityOne of the potentially fair reasons an employer can use to dismiss someone, covering situations where you are unable to do your job to the required standard, including through ill health. A fair capab..., not the stated redundancyA dismissal that occurs when your employer no longer needs the work you do, either because the business is closing, a workplace is closing, or the requirement for employees to carry out that kind of w... label.”
An employer can correct the label it gives your dismissal, but only if the real facts behind it were already known at the time. A reason that surfaces for the first time at tribunal is a different matter.
- Keep a timeline of what your employer said and when, from your dismissal through any appeal and into tribunal proceedings.
- If the stated reason shifts after you raised a grievanceA formal complaint raised by an employee against their employer, triggering a legal obligation to investigate and respond., made a protected disclosureThe legal term for a qualifying whistleblowing report. For a disclosure to be protected it must relate to specific categories of wrongdoing, you must reasonably believe it is true, and in most cases i..., or exercised a statutory right, treat that shift as evidence worth preserving.
- Get advice early if you think the real reason is one your employer would rather not admit to.
The situation
A civil engineer had worked for the same employer for 20 years. When the business reorganised, he was asked to take a secondment elsewhere and turned it down. His employer then dismissed him and gave the reason as redundancy, paying him a redundancy paymentA payment you are entitled to if you are made redundant and have at least two years of continuous employment. The amount is calculated using your age, weekly pay, and length of service, following a st... plus an additional ex gratia sum.
What the court found
The tribunal did not accept that this was a genuine redundancy. It found the true reason was different: the employee lacked the flexibility and adaptability the role now required, which was a capability issue rather than a reduction in the employer's need for the work. The Court of Appeal upheld this and set out the test still used today. Lord Denning MR held that an employer does not have to get the label right at the time of dismissal, provided the facts behind the real reason were already known, or made known, to the employee. Cairns LJ went further: the reason for a dismissal is the set of facts the employer actually knew, or the beliefs it actually held, that caused it to dismiss. A reason given at the time is evidence of what that was, but it is not the last word on it.
Abernethy v Mott, Hay and Anderson. [1974] ICR 323. Court of Appeal. 6 February 1974.