In employment law, dismissal is rarely judged solely on the outcome—it is the fairness of the process that is often decisive. Ordinary unfair dismissal sits at the centre of this principle, requiring employers not only to have a fair reason for dismissal, but also to follow a fair and reasonable procedure. 

In Northern Ireland (NI), this is governed by the Employment Rights (Northern Ireland) Order 1996, but the underlying legal tests have been shaped largely through case law. While the concept is often described as “ordinary”, in practice it is anything but straightforward. 

Why “Ordinary” Unfair Dismissal Matters 

The term “ordinary” simply distinguishes these claims from automatically unfair dismissals, where the reason for dismissal is prohibited (such as whistleblowing or pregnancy). Unlike ordinary unfair dismissal claims, automatically unfair dismissal claims do not require any qualifying period of service.

In an ordinary unfair dismissal claim, the tribunal asks three core questions:

• Was there a potentially fair reason for dismissal?  
   
• Did the employer follow a fair procedure?  
   
• Was the decision within the range of reasonable responses?  

It is this final question that often proves decisive.

In British Leyland UK Ltd v Swift (1981), the Court of Appeal confirmed that a dismissal can be fair even if it was not the only reasonable outcome—provided it falls within a range of responses open to a reasonable employer. This principle remains the cornerstone of unfair dismissal law in NI. 

Qualifying Service and Risk in NI 

In Northern Ireland, employees generally require one year’s continuous service to bring an ordinary unfair dismissal claim.

However, this threshold can create a false sense of security for employers.

A key practical point is that statutory notice can extend an employee’s service, potentially bringing them over the one-year threshold. Where an employee is dismissed without being required to work their notice, the statutory minimum notice period may still be added for the purpose of calculating continuity of service. In practice, this means an employee just short of one year’s service may still qualify to bring a claim.

Certain dismissals—linked to discrimination, whistleblowing, or asserting statutory rights—are automatically unfair and do not require qualifying service. In those cases, the label “ordinary” falls away entirely, and risk increases significantly. 

Fair Reasons for Dismissal 

Employers must be able to demonstrate one of the recognised fair reasons:

• Conduct  
   
• Capability or performance  
   
• Redundancy  
   
• Statutory restriction  
   
• Some other substantial reason (SOSR)  

However, identifying a fair reason is only part of the equation.

As confirmed in Iceland Frozen Foods Ltd v Jones (1982), the tribunal’s role is not to decide what it would have done, but whether the employer acted reasonably in treating that reason as sufficient for dismissal. 

Process: Where Most Cases Are Won or Lost 

In practice, most unfair dismissal findings arise not because the reason was invalid, but because the process was flawed.

A fair process will typically include:

• A reasonable investigation  
   
• Clear communication of concerns  
   
• An opportunity for the employee to respond  
   
• A formal meeting  
   
• A right of appeal  

The importance of the investigation stage was emphasised in Sainsbury’s Supermarkets Ltd v Hitt (2002), where it was confirmed that the quality of the investigation itself must fall within the range of reasonable responses.

Similarly, in London Ambulance Service NHS Trust v Small (2009), it was made clear that the focus is on what the employer reasonably believed at the time, based on the investigation carried out—not whether the employee was in fact guilty. This principle was reinforced in Polkey v AE Dayton Services Ltd (1987), which confirmed that a dismissal can still be unfair where a fair procedure was not followed, even if the outcome may ultimately have been the same.

The “Range of Reasonable Responses” in Practice 

The “range of reasonable responses” test is what makes ordinary unfair dismissal both flexible and unpredictable. This test does not ask whether the tribunal agrees with the decision, but whether the employer’s decision was one that a reasonable employer could have made

It recognises that:

• Different employers may reasonably reach different conclusions  
   
• There is no single “correct” outcome  
   
• Tribunals should not substitute their own judgment  

This was reinforced in Post Office v Foley; HSBC v Madden (2000), confirming that tribunals must avoid stepping into the shoes of the employer.

A useful illustration is Bowater v North West London Hospitals NHS Trust (2011), where dismissal for a one-off inappropriate comment was found to be unfair. The employer had a valid concern, but dismissal fell outside the range of reasonable responses when viewed in context.

By contrast, in Barchester Healthcare Ltd v Tayeh (2013), the Employment Appeal Tribunal overturned a finding of unfair dismissal, confirming that the employer’s decision did fall within that reasonable range—highlighting how finely balanced these cases can be.

Practical Pitfalls for Employers 

From an NI employer perspective, common issues include:

• Rushing to dismissal without a proper investigation  
   
• Failing to follow internal procedures or the LRA Code of Practice  
   
• Inconsistent treatment of similar cases  
   
• Poor documentation of decision-making  
   
• Assuming probationary or short-service employees carry no risk  

While compensation may be reduced where procedures are not followed strictly, a fundamentally unfair process can still result in liability. 

Practical Steps for Employers 

To minimise risk:

• Clearly identify the reason for dismissal at the outset  
   
• Carry out a proportionate and well-documented investigation  
   
• Follow a fair and structured procedure  
   
• Ensure decisions are consistent and evidence-based  
   
• Provide a genuine opportunity for the employee to respond  

Where there is uncertainty, slowing the process down and applying structure is often the most effective safeguard. 

Final Thought

Ordinary unfair dismissal may be described as “ordinary”, but the legal test is anything but simple.

Most cases do not turn on whether the employer had a reason to dismiss—they turn on whether the employer can demonstrate that they acted reasonably, fairly, and within the boundaries set by long-established case law.

In practice, it is not the seriousness of the issue that determines the outcome—it is the strength and fairness of the process behind it. Employers who focus on process, not just outcome, are far better placed to defend their decisions.