Dismissals are challenging, and even careful employers can get it wrong. However, if a dismissal is based on a genuine mistaken belief, it can still, in some circumstances, be fair.
1. Conduct
For misconduct dismissals, employers only need a genuine, reasonable belief in the employee’s guilt based on a fair investigation. The classic test, from the landmark employment law case, BHS v Burchell, confirms that it’s not about proving guilt but whether the employer reasonably believed in the misconduct after conducting a reasonable investigation.
2. Capability
Employers don’t need absolute certainty that an employee is incapable of performing their job. A reasonable belief based on medical reports or performance assessments can justify a fair dismissal, even if the employer is later proven wrong.
3. Redundancy
To rely on redundancy as the fair reason for dismissal, the employer needs to get it right. The employee’s role must be genuinely redundant at time of dismissal – either due to the closure of the business or workplace, or due to a reduced need for work of a particular kind. A mistaken belief is less likely to stand where the reason relied upon is redundancy.
4. Illegality
If an employer mistakenly believes continuing employment would be illegal, dismissal for illegality is unlikely to be fair. However, they may still argue SOSR if the belief was genuinely held and reasonable.
5. Some Other Substantial Reason (SOSR)
SOSR is the most forgiving category, allowing employers to rely on genuine but mistaken beliefs. For example, in Impact Recruitment Services Ltd v Korpysa, the employer mistakenly believed the employee had resigned and treated her employment as terminated. The Employment Appeal Tribunal held that a genuine, reasonable belief in resignation could be a fair SOSR reason. While genuine mistakes can sometimes justify a fair dismissal, employers must still act reasonably and follow fair procedures. Clear communication, thorough investigations, and legal advice can help avoid costly missteps.
Further reading
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