Motive for dismissal

Aslef v Brady [2006] IRLR 576; EAT SJ 27 Oct

In a claim for unfair dismissal, the question is whether the misconduct was the real reason for dismissal or whether the employer was activated by some other motive. Dismissal might be for an unfair reason, even where misconduct has occurred. Accordingly, the EAT upheld a tribunal’s finding that a trade union general secretary was not dismissed for gross misconduct, as the union alleged, but because of politically motivated hostility towards him. Accordingly, the union had failed to show that the dismissal was for a potentially fair reason. Even a potentially fair reason may be the pretext for dismissal for other reasons. Evidence that others would not have been dismissed in similar circumstances would be powerful evidence that the employer did not dismiss for a proper reason, but it is open to the tribunal to find a dismissal unfair, even in the absence of such strong evidence. In a case of mixed motives, such as malice and misconduct, the principal reason may be malice, even though the misconduct would have justified the dismissal had it been the principal reason. On the other hand, the fact that the employer acted opportunistically in dismissing the employee does not necessarily exclude the finding that the dismissal was for a fair reason.