Unfair Dismissal Screener Andrew Bird

/unfair-dismissal-screener

This skill structures an analysis for a solicitor to verify. It does not determine whether a dismissal was fair — that is the Tribunal's call, on facts and witnesses this prompt never sees.

• Frame the qualifying service question (s.108 ERA): two years continuous service, unless the dismissal falls within an automatically unfair category (no qualifying period required).
• Identify the potentially fair reason advanced (s.98(2)): conduct, capability, redundancy, illegality, some other substantial reason. If none, s.98(1) — burden on employer to show fair reason.
• Structure the Burchell analysis (conduct cases): reasonable belief, reasonable investigation, dismissal within the band of reasonable responses.
• Structure the Polkey question (procedural fairness): if the dismissal was procedurally unfair, what was the chance it would have happened anyway? Reduces compensatory award.
• Note the ACAS Code position: failure to follow can produce up to 25% uplift (s.207A TULR(C)A 1992).
• Output an indicative risk score with the reasoning visible — for a solicitor to check, not a prediction.

Mark every authority you cannot pin to a section or case with [CITE NEEDED — authority] rather than stating it as settled. Verify each citation before relying on it.

Unfair dismissal screener

Purpose

Quick, structured fairness assessment. Pre-dismissal: helps an employer decide whether to proceed. Post-dismissal: helps either side assess the strength of a prospective claim.

Qualifying service gate (s.108 ERA 1996)

Default rule: ordinary unfair dismissal requires two years' continuous service (effective from 6 April 2012 for employees who started on or after that date).

No qualifying period applies if the dismissal is automatically unfair, including (non-exhaustive).

The statute references below are a starting checklist, not authority. Verify each citation against the live source before relying on it, and mark any you cannot confirm [CITE NEEDED — authority]. Items turning on pending or recent legislation are marked [SME VERIFY].

| Category | Statute |

|---|---|

| Whistleblowing — disclosure under s.43B ERA | s.103A ERA |

| Trade union membership or activities | s.152 TULR(C)A 1992 |

| Pregnancy, maternity, parental leave | s.99 ERA |

| Health and safety — designated representative, raising concern | s.100 ERA |

| Asserting a statutory right | s.104 ERA |

| Working Time Regulations | s.101A ERA |

| National Minimum Wage | s.104A ERA |

| TUPE — for ETO reason or in connection with transfer | reg 7 TUPE 2006 |

| Family-friendly rights (paternity, adoption, flexible working request, etc.) | various ERA sections |

| Spent convictions | s.4(3)(b) Rehabilitation of Offenders Act 1974 |

| Jury service | s.98B ERA |

| Discriminatory dismissal | EqA 2010 (which is a separate cause of action — but the dismissal is also "automatically unfair" in effect — plead both) |

[SME VERIFY] The Employment Rights Bill 2024–25 is expected to introduce day-one unfair dismissal rights subject to a statutory probation period — this is time-sensitive and may have changed. Confirm the current status, commencement date, and probationary regime before relying on it. [SME VERIFY — Employment Rights Act 2025 implementation date and probationary regime].

Potentially fair reasons (s.98(2) ERA)

• Conduct
• Capability or qualifications
• Redundancy (specific s.139 definition)
• Illegality (continued employment would contravene a statutory restriction)
• Some other substantial reason (SOSR) — catch-all for genuine business reasons not in the first four

The employer must show the reason (s.98(1)). The Tribunal then decides whether the dismissal was fair "having regard to the reason shown" (s.98(4)).

Burchell test (conduct dismissals — British Home Stores v Burchell)

Three limbs:

• The employer must have a genuine belief in the employee's misconduct.
• The belief must be based on reasonable grounds.
• The employer must have carried out a reasonable investigation.

Each limb is assessed by reference to the band of reasonable responses test (Iceland Frozen Foods v Jones — would a reasonable employer in those circumstances have come to that conclusion?). The Tribunal does not substitute its own view.

Polkey (procedural fairness — Polkey v A.E. Dayton Services)

A dismissal that was substantively justifiable but procedurally unfair is unfair, but the compensatory award is reduced by the percentage chance that the employee would have been dismissed in any event had a fair procedure been followed (the "Polkey reduction").

A 100% Polkey reduction (no compensation but still a finding of unfair dismissal) is possible.

ACAS Code uplift

Failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures — applies to conduct and performance dismissals, not redundancy / SOSR — can result in up to 25% uplift on compensation (s.207A TULR(C)A 1992). Conversely, an employee's unreasonable failure to follow the Code can result in a 25% reduction.

Workflow

Step 1 — Eligibility

Qualifying service: yes / no. If no, is there an automatically unfair head? If neither, ordinary unfair dismissal claim is unavailable. Test for discrimination (EqA 2010) which has no qualifying period.

Step 2 — Reason

What reason does the employer say? Is it within s.98(2)? Note: pretextual reasons fail at this stage — burden on employer.

Step 3 — Fairness

Apply the relevant framework (Burchell for conduct, capability cases follow a similar pattern with warnings + improvement opportunity; redundancy has its own framework — pool, selection criteria, consultation, suitable alternative employment per Williams v Compair Maxam).

Step 4 — Procedure

ACAS Code compliance. Investigation, invitation, hearing, right to be accompanied (s.10 Employment Relations Act 1999), decision, right of appeal. Each is a discrete procedural step; failure of any is a procedural defect.

Step 5 — Polkey + ACAS adjustments

Estimate Polkey % and ACAS uplift, and carry them through to an illustrative compensation range. Any arithmetic here (basic award, compensatory award, Polkey reduction, ACAS uplift) is illustrative only — recompute against current statutory caps and the week's-pay figure before quoting to a client.

Step 6 — Output

An indicative risk score with the reasoning visible — for a solicitor to verify, not a prediction.

Output

Produce these sections as the finished screen. Do not echo this template back, and do not invent facts to fill a section — if a fact is unknown, say so. Mark uncertainty inline as you go: [CITE NEEDED — authority] for any rule or case you cannot pin to a section or citation, [SME VERIFY — point] for time-sensitive, borderline, or solicitor-call items.

Unfair Dismissal Screen — [Employee name]

Eligibility

• Start date: [YYYY-MM-DD]
• EDT: [YYYY-MM-DD]
• Continuous service: [X years Y months]
• Qualifies for ordinary unfair dismissal (s.94 ERA): [yes/no]
• Automatic unfair heads in play: [list, with statute]
• EqA discrimination overlay: [yes/no — protected characteristic]

Reason advanced by employer

• Reason: [conduct / capability / redundancy / illegality / SOSR]
• Stated basis: [...]
• Is the reason genuine? [...]

Fairness analysis

Substantive (Burchell for conduct):

• Genuine belief: [...]
• Reasonable grounds: [...]
• Reasonable investigation: [...]
• Within band of reasonable responses: [...]

Procedural (ACAS Code):

• Investigation: [...]
• Written notice of allegation: [...]
• Hearing with right to be accompanied: [...]
• Decision in writing: [...]
• Right of appeal: [...]

Risk score (indicative)

| Factor | Position |

|---|---|

| Substantive fairness | Strong / Borderline / Weak |

| Procedural fairness | Strong / Borderline / Weak |

| Polkey reduction estimate | [%] |

| ACAS uplift estimate | [%] |

Overall risk to employer (indicative — for a solicitor to verify, not a prediction): [Low / Medium / High]

Compensation range (illustrative — recompute before quoting to a client)

Figures below are illustrative working only. Recompute against the current statutory cap and week's-pay figure before relying on them. [SME VERIFY — current statutory cap and week's pay]

• Basic award (s.119 ERA): £[X]
• Compensatory award (s.123 ERA, capped per s.124): £[Y] — range reflecting Polkey
• ACAS uplift: + [up to 25%]
• Illustrative range: £[low] – £[high]

Recommended actions

• [Pre-dismissal: fix specific procedural defects before proceeding.]
• [Post-dismissal: settlement window / appeal outcome / ET1 strategy.]

Markers

• [SME VERIFY — current statutory cap, week's pay, ERB 2025 status]

What this skill does not do

• Determine fairness. Whether a dismissal was fair is the Tribunal's call on facts, witnesses, and evidence this prompt never sees. The screen structures the analysis; it does not decide it.
• Predict the outcome. The risk score is indicative — a structured read for a solicitor to verify, not a calibrated probability or a forecast.
• Give legal advice. This is a draft screen for solicitor review, not advice to any party. A qualified solicitor must check every citation, recompute every figure, and own the conclusion before it goes to a client.
• Replace a formal opinion. It is a structured prompt for that conversation, not a substitute for it.
• Quantify pension loss precisely.
• Cover redundancy selection-criteria challenges in detail (separate skill territory).
• Cover Scotland / Northern Ireland.