Today's rant. People don't think clearly enough about the reason for dismissal in unfair dismissal cases.

The problem is that the structure of potentially fair reasons means that people stop their analysis at the point that they've identified a potentially fair reason.

"This is a conduct dismissal. Conduct is a potentially fair reason, so I can stop thinking about the reason for dismissal and start applying the Burchill Test."

There are two problems with that:

First, is it really conduct? Employers are always keen to regard any breach of rules as misconduct. But I'm not at all sure that's right. If you forget the rule, misunderstand the rule or just screw up, that seems to me to be a capability issue, not a conduct one.

In UD cases, what matters is what the employer thinks happened, not what actually did.

But if they think you mucked up, not you deliberately broke the rules, that should still be a capability dismissal, not conduct. Which has major implications for the legal test for fairness.

Second, misconduct is not a single unified mass. There's a big difference between a venial sin and a mortal one. Some misconduct is worse than other misconduct. Again, what matters is what the employer believed -- but that's something the Tribunal should examine.

Did the employer believe their employee started a fight and set out to injure someone for no good reason? Or did they believe that the employee was being bullied, tried to walk away, then acted in self defence -- but threw one punch too many after losing their temper?

Exactly what the employer believed makes a vital difference to the questions of grounds supporting their belief, the reasonableness of their investigation and whether dismissal was an appropriate sanction.

Also, if the employer hasn't actually reached a clear conclusion about what they think happened, that in and of itself might be unfair.

In short, it's very common that s98(1) ERA is satisfied and the employer has a potentially fair reason (maybe it's clearly a conduct dismissal or clearly either capability or conduct). Fighting that might be pointless.

But examining the exact reason for dismissal in the employers mind is still often key. It may be potentially fair -- but what are its implications for the rest of the fairness test?