Unfair Dismissal and Managerial Prerogative: A Study of Other Substantial Reason
![handle is hein.journals/indlj10 and id is 50 raw text is: Unfair Dismissal and Managerial
Prerogative: A Study of Other
Substantial Reason
By John Bowers* and Andrew Clarke*
Introduction
Every employee has the right not to be unfairly dismissed by his
employer, proclaims section 54 of the Employment Protection (Consoli-
dation) Act 1978.' A dismissing employer must prove to the industrial
tribunal the reasons for the dismissal, and the tribunal must be satisfied
that he acted reasonably in all the circumstances (section 57 (3)). There
are two routes he may take to show the former. First, he may put forward
one of the four reasons set out in section 57 (2), capability, conduct,
redundancy, or contravention of a statutory duty. The second possibility
is more amorphous: some other substantial reason of a kind such as to
justify the dismissal of an employee holding the position which that
employee held (section 57 (1) (b)). By the interpretation of this
residual subsection the promise of the fundamental right held out by
section 54 may prove chimerical. This is particularly so since its language
is rather wider than the provisions of I.L.O. recommendation 119 2 on
which most of the unfair dismissal legislation was based. Yet, surprisingly,
the provision was not discussed by Parliament when first enacted,' nor in
its subsequent re-embodiments. Neither has its scope received the
detailed attention of the House of Lords or Court of Appeal,4 and the
guidance given at Employment Appeal Tribunal level has been less than
clear.'
Certain factual circumstances are, however, being recognised as falling
within the subsection.6 It is the purpose of this article to look at practice in
this area, and to suggest that several recent cases strike at the policies of
the other established gateways to dismissal. In very few reported
Barrister.
Subject to E.P.C.A. ss. 141-146.
This refers to a valid reason connected with the capacity or conduct of the worker or based on the
operational requirements of the undertaking.
3 As s. 24 of the Industrial Relations Act 1971.
' In Hollister v. N.F. U. [1979] I.C.R. 542, Eveleigh L.J. said I do not think it is right to lay down as a
general rule what is and what is not some other substantial reason. The majority of the judgments deal
with the question of the need for consultation in a reorganisation (see infra).
One might compare the conceptual problem which still surrounds the precise definition of construc-
tive dismissal. One reason for both these states of affairs is the self-denying ordinances of the
E.A.T., which are being increasingly expressed. Some other substantial reason was put in this way in
Priddle v. Dribble [1978] I.C.R. 149: It is for the industrial tribunal to use its common sense and
experience and unless it can be shown that its answer is so obviously wrong that it has or must have
misdirected itself, it is not for this.., tribunal to say that it has gone wrong in law.
'Further by E.P.C.A., s., 61, if an employer on engaging an employee informs him in writing that his
employment will be terminated when another employee absent because of pregnancy or confinement, or
as a result of being suspended on medical grounds (s. 19), returns to work, the subsequent dismissal of the
replacement shall be for a substantial reason.](ViewImageLocal?handle=hein.journals/indlj10&div=13&collection=&method=preview&ext=.png&size=3)
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Unfair Dismissal and Managerial Prerogative: A Study of Other Substantial Reason
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