Reasonable responses versus proportionality in employee dismissal cases: A comparison between the Employment Rights Act 1996, s 98(4) and the Equality Act 2010, s 13(2), s 15(1)(b), and s 19(2)(d).


  • Susan B O’Brien Northumbria University


What, if any, are the differences between a dismissal that is reasonable and one that is a proportionate means of achieving a legitimate aim? That is the question at the centre of this dissertation. To answer it we start by placing both legal tests within the overall context of statute, then assess and analyse both separately. From that point the two can be fully compared. The structure of this dissertation is thus as follows: Chapter one outlines statutory provisions regulating dismissal from employment in both the Employment Rights Act 1996 (ERA) and Equality Act 2010 (EqA). It identifies the key role of section 98(4) of the ERA in deciding unfair dismissal claims; and the likewise key roles of sections 13(2), 15(1)(b), and 19(2)(d) of the EqA in deciding some categories of discrimination claim. Chapter two examines the application of ERA s 98(4) in depth to identify its interpretation, its impact on claimants and employers, and the likelihood of future legal developments in this area. Chapter three carries out a similar exercise for sections 13(2), 15(1)(b), and 19(2)(d) of the EqA. Having identified the central concepts of reasonable responses and proportionality, chapter four compares them directly. It focuses particularly on dual claim situations where both tests are necessarily applied side by side to the same facts. Overall conclusions are made about both differences and similarities found. It is argued that the relationship between reasonableness and proportionality in cases of employee dismissal is not fully settled within case law, and further clarification will likely be necessary in the future. Such clarification could go to the heart of distinctions between unfair dismissal and discrimination in UK law.






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