Was your dismissal fair? Here’s the test that decides it.

Getting something wrong at work and losing your job for it is one thing. Losing it because the process was unfair, or because your employer’s decision fell outside what any reasonable employer would do, is another.

What “unfair” actually means

The legal test is not whether a tribunal agrees with your employer’s decision. It is whether that decision was one a reasonable employer could have reached. This is called the band of reasonable responsesThe band of reasonable responses is the legal test used in unfair dismissal cases. A tribunal does not decide whether the employer made the right decision; it decides whether the decision fell within ....

Iceland Frozen Foods v Jones set out this test in the form still used today. A tribunal does not ask what it would have done in your employer’s place. It asks whether your employer’s decision, and the process behind it, sat within the range a reasonable employer might have adopted. If it did, the dismissal is fair, even if the tribunal itself would have decided differently.

That can be frustrating to hear. You might be certain your employer got it wrong. In law, though, “wrong” and “unfair” are two different questions.

British Leyland v Swift shows how this plays out. A lorry driver was dismissed after being found with a road tax disc that did not belong to his vehicle. He denied any wrongdoing. The tribunal agreed and found the dismissal unfair. The Court of Appeal overturned that finding. The question was never whether he was actually guilty. It was whether dismissal was a decision a reasonable employer could have reached on the evidence available at the time.

This is where most unfair dismissalA legal claim you can bring if your employer dismissed you without a fair reason or without following a fair process. You normally need two years of continuous employment to qualify, though some dismi... claims are actually won or lost: not on the substance of what happened, but on the process behind it. Did your employer investigate properly? Did they let you respond to the case against you before deciding? Did they warn you first, where a warning was the right step? A decision can still be reasonable even if you disagree with it. A decision reached without a fair process rarely survives scrutiny.

If you were dismissed while you were ill

Dismissal during long-term sickness absence has its own version of this test, and it is worth setting out separately, since employers get it wrong here often enough that it accounts for a real share of successful claims.

Being off sick for a long time does not, on its own, make dismissal fair. Your employer still has to do the work: get proper medical evidence, understand the likely prognosisA prognosis is a medical assessment of the likely course and outcome of an illness or injury. In employment law, an employer is expected to obtain a prognosis before deciding to dismiss on grounds of ..., and weigh that against your length of service and the practical impact of your absence on the business.

Spencer v Paragon Wallpapers confirmed that an ill-health dismissal needs more than a business case for moving on. Your employer has to genuinely investigate the medical position before deciding anything. That means finding out what is actually wrong, how long recovery might realistically take, and whether there was anything reasonable it could have done differently first.

O’Brien v Bolton St Catherine’s Academy took this further. A teacher was dismissed after a long absence for ill health. On paper, the case for dismissal looked simple: she had been off work, she was still off work, the school needed to move forward. The Court of Appeal found the dismissal unfair anyway. Her employer had not properly weighed the medical evidence, her personal circumstances, or the realistic alternatives before deciding to dismiss her.

The lesson from both cases is the same. Prolonged absence is not, by itself, a fair reason to dismiss you. Your employer has to show it genuinely engaged with your situation, not just with the calendar.

What to do next

If you think your dismissal did not meet this standard, start by writing down what happened and when, while it is still fresh. Note anything your employer did not investigate, any evidence you were not shown, and any medical information they had but did not act on.

Our guide on whether to raise a grievance walks through that decision if you have not made it yet. If you want to understand the fuller process, our complete guide to raising a grievance at work covers what comes next.

Employment tribunalAn independent court that hears disputes between employees and employers. It is free to bring a claim as a claimant, and most hearings take place in public. claims have a strict time limitThe deadline by which you must submit a claim to an employment tribunal. For most claims the limit is three months less one day from the act you are complaining about, and it is strictly enforced. Mis..., normally three monthsThe standard time limit for bringing most employment tribunal claims, running from the date of the act complained of. Because the limit is three months less one day, you should not wait until what fee... less one day from your dismissal date. Do not wait to get advice while you weigh up your options.

Not sure where you stand? Our situation guide can help you work out what applies. Or book a call with us directly.