A recent case involving Marks & Spencer has attracted significant attention. An employee in Ireland was awarded compensation for unfair dismissal after being sacked over the alleged misuse of a staff discount code by his wife. The case was decided by Ireland’s Workplace Relations Commission under Irish employment law. Nonetheless, it serves as a reminder for UK employers, under which similar UK laws apply. It also provides answers for employees to the question: What is an unfair dismissal?

In any dismissal, employers must not only have a fair reason for termination but must also follow a fair disciplinary procedure. Failure to do so can result in costly employment tribunal claims, reputational damage and strained workplace relations.

If you believe you’ve been unfairly dismissed, it’s important to seek legal advice as soon as possible. Whether you’re considering an appeal, Acas early conciliation, or an employment tribunal claim, understanding your rights is the first step.

To learn more about the services Redmans Solicitors provide, simply:

• Call us now on 020 3397 3603
• Request a callback by filling out our online form

The M&S Case Facts

The employee had worked for M&S for several years before being dismissed after his wife misused his employee discount code. The company’s internal monitoring detected the code being used 73 times over six weeks. Only one transaction was linked to the employee personally, though. Once aware, he immediately stopped his partner from using the card and volunteered to reimburse the company for any losses.

The retailer argued that the use of the discount constituted a breach of company policy and amounted to gross misconduct. However, the Workplace Relations Commission found that dismissal was disproportionate in the circumstances. It concluded that there were shortcomings in the employer’s decision-making and that alternatives to dismissal could have been considered. The employee consequently received €2,000, a 50% reduction from the initial €4,000 awarded due to his part in the event.

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Although the decision was made under Irish law, the case highlights issues that employers in the UK may also encounter. Even where misconduct appears to have occurred, dismissal isn’t automatically fair. Employers should carefully consider each case’s facts, an employee’s explanation and the seriousness of conduct. They must also determine whether dismissal falls within the range of reasonable responses before reaching a final decision.

What is an Unfair Dismissal?

Under UK employment law, unfair dismissal arises when an employer dismisses an employee unfairly. This could happen if a decision to dismiss is made without a fair reason or first following a fair procedure.

Most employees acquire the right to claim ordinary unfair dismissal after two years’ continuous service, although there are important exceptions. Some dismissals are automatically unfair regardless of an employee’s length of service, however. This includes dismissals connected with whistleblowing, pregnancy, family leave or asserting certain statutory employment rights.

The Employment Rights Act 1996 recognises several potentially fair reasons for dismissal. These include conduct, capability, redundancy, a statutory breach, and “some other substantial reason”. However, simply relying on one of these reasons does not automatically make a dismissal fair. An employment tribunal will also consider whether the employer acted reasonably in treating that reason as sufficient to justify dismissal in the particular circumstances.

Is Gross Misconduct Dismissal Always Fair?

Employers often assume that labelling behaviour as gross misconduct automatically justifies dismissal. In reality, this is not the case. Gross misconduct dismissal may be appropriate where an employee commits serious wrongdoing that fundamentally destroys trust and confidence between the employer and employee. Examples might include theft, fraud, serious dishonesty, violence or significant breaches of health and safety.

Even where conduct could amount to gross misconduct, employers should still investigate the allegations thoroughly before making a decision. The seriousness of the misconduct, the employee’s previous disciplinary record, their length of service, any mitigating circumstances and whether similar cases have been treated consistently should all be taken into account.

Ultimately, an employment tribunal will assess not only whether misconduct occurred but also whether dismissal fell within the range of reasonable responses open to the employer.

Why Following a Fair Disciplinary Procedure Matters

One of the most common reasons employers lose unfair dismissal claims is because they fail to follow a fair procedure. Before dismissing an employee for misconduct, employers should carry out a reasonable investigation to establish the relevant facts. Employees should be informed of the allegations against them, provided with the evidence relied upon and given a genuine opportunity to respond before any decision is made.

A disciplinary hearing should be conducted fairly and impartially, with the employee given the opportunity to explain their position. Where the statutory right applies, employees should also be allowed to be accompanied at the hearing and should have the opportunity to appeal any decision to dismiss.

Failure to follow the Acas Code of Practice on Disciplinary and Grievance Procedures does not automatically make a dismissal unfair. However, employment tribunals take the Code into account when deciding whether an employer acted reasonably and may increase or reduce compensation where the Code has not been followed.

What Rights Do Employees Have?

Employees who believe they have been unfairly dismissed may be able to challenge their dismissal before an employment tribunal. Before bringing most tribunal claims, though, employees are generally required to notify Acas and participate in early conciliation. This provides both parties with an opportunity to resolve the dispute without formal legal proceedings.

If the matter proceeds to a tribunal, the employer will usually need to demonstrate both that there was a potentially fair reason for dismissal and that a fair disciplinary procedure was followed throughout the process.

Where an unfair dismissal claim succeeds, the tribunal may award compensation or, in some circumstances, order reinstatement or re-engagement. Employees should also remember that strict time limits apply to tribunal claims, making it important to seek advice promptly.

Lessons for Employers

The M&S case illustrates that employers should avoid treating dismissal as an automatic response whenever misconduct is suspected. Each disciplinary matter should be assessed on its own facts. Employers should ensure investigations are thorough, decisions are evidence-based, and any sanction is proportionate to the circumstances.

Consistency is equally important. Similar cases should generally produce similar outcomes unless there is a clear and justifiable reason for different treatment.

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Reviewing disciplinary policies, training managers and ensuring decision-makers understand the requirements of a fair disciplinary procedure can significantly reduce the risk of unfair dismissal claims. Strong workplace relations are built on transparent and consistent decision-making, particularly where employees can see that disciplinary issues are handled fairly.

What is an Unfair Dismissal? Our Final Thoughts

Although the Marks & Spencer case was decided by Ireland’s Workplace Relations Commission rather than a UK employment tribunal, it reinforces an important principle that applies across many employment law systems: dismissal should never be treated as the default response simply because misconduct is alleged.

Under UK employment law, what is an unfair dismissal depends not only on the reason for dismissal but also on whether the employer acted reasonably and followed a fair disciplinary procedure. Even where a gross misconduct dismissal may appear justified, employers should investigate carefully, consider all relevant circumstances and ensure any decision is proportionate.

For employees, understanding their legal rights is equally important. Those who believe they have been dismissed unfairly may have the right to challenge the decision through the employment tribunal, making it essential for both employers and employees to understand the legal framework governing workplace dismissals.

Get Help with Redmans

If you believe you have been unfairly dismissed or are facing disciplinary action that could result in dismissal, it is important to seek legal advice as soon as possible. Whether you are considering appealing your dismissal, starting Acas early conciliation, or pursuing an employment tribunal claim, understanding your rights is the first step.

At Redmans Solicitors, our specialist employment law team can assess your circumstances, explain your legal options, and advise on the best course of action based on your individual situation.

It only takes a moment to get started; simply:

• Call us on 020 3397 3603
• Request a callback via our online form