Individual Employment Low Aspects: Dismissal — changes and innovations

Whereas the 1978 legislation placed the burden of proof fairly and squarely on the employer's shoulders, in that the determination of the question of fairness was to depend on whether the employer could satisfy the tribunal that he acted reasonably in treating the reason for dismissal as sufficient, the 1980 legislation makes a significant change. It provides that in determining whether the dismissal was fair or unfair, ‘ … having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and adminstrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and that question shall be determined in accordance with equity and the substantial merits of the case.’ The employer has no longer to satisfy the tribunal that he acted reasonably in treating the reason for dismissal as sufficient: there therefore exists no burden of proof either way and a redression of the situation prior to 1974 has occurred. It is suggested that this change is of little practical significance. The provisions of the 1978 legislation were only of psychological importance. They made the Labour Government and trade unions happy in the knowledge that the employer was confronted with a tougher task when dismissing an employee. Research in the case law has shown however that the tribunals did not treat the 1978 Act provisions in a significantly different manner to those under the 1971 Act. This means that the 1980 amendment imposing no heavier burden of proof either way will make virtually no change in practice.