call us now 0203 669 2216

Employment Lawyers in London

Employment Lawyers in London - Herefords Solicitors - Unfair Dismissal Misconduct

Misconduct is a potentially fair reason for dismissal

The dismissal of an employee for a reason which “relates to the conduct of the employee” is potentially fair, Employment Rights Act 1996 (ERA 1996)).

Many employers have workplace disciplinary rules which identify unacceptable conduct, the degree of severity with which it is regarded and how acts of misconduct in the workplace will be dealt with

Employer must show that conduct was the reason for dismissal

It is for the employer to show that conduct was the reason for dismissal. For the purposes of establishing the reason for dismissal, the employer only needs to have a genuine belief in the employee’s misconduct; the belief does not have to be correct or justified.

Fairness: was it reasonable to dismiss in the circumstances?

The starting point for determining whether a dismissal for misconduct is fair is the statutory test set out in section 98(4) of ERA 1996.

A body of case law has developed on the approach an employer needs to take and on the conclusions that the employer needs to reach for it to be reasonable, and so fair, to treat the identified misconduct as a sufficient reason for dismissal.

The statutory test: section 98(4) of ERA 1996

The statutory test requires a tribunal to ask whether, having regard to the reason identified by the employer for the dismissal, in the circumstances (including that employer’s size and administrative resources), the employer acted reasonably in dismissing for that reason. This often results in a tribunal asking two questions:

  • Did the employer undertake a fair investigation in reaching the decision to dismiss?
  • Did the employer act reasonably in treating the misconduct it identified as a sufficient reason for dismissal?

Gross misconduct

 An employer may dismiss fairly for gross misconduct without prior warnings and without notice. The term “gross misconduct” connotes the most serious types of misconduct, such as theft or violence, warranting instant dismissal.

If you are facing disciplinary proceedings or have been dismissed for misconduct and would like a no obligation opinion on your case please contact one of our employment solicitors on 0203 669 2213 or email


Call or email us to arrange a free consultation.

0203 669 2216