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I. Introduction
Unfair dismissal law places restrictions on the ability of employers to dismiss employees for misconduct. Section 94 of the Employment Rights Act (ERA) 1996 gives employees "the right not to be unfairly dismissed" by their employers, and section 98 delineates the process for determining whether a dismissal is fair or unfair, with section 98(4) setting reasonableness of the employer's behaviour as the benchmark for fair dismissal. Upon a finding of unfair dismissal, an employment tribunal (ET) may order reinstatement or reengagement of the employee, if the employee expresses a wish for such a remedy, and if circumstances permit[1]. More commonly, the ET orders an award of compensation, made up of a basic award and a compensatory award. The ET's assessment of the fairness of a dismissal for misconduct will focus on the state of mind and behaviour of the employer at the time of the dismissal, paying relatively little heed to the question whether the employee actually engaged in misconduct. It is thus possible for an employee to be fairly dismissed even if he or she was wholly innocent of the misconduct alleged, provided that the employer had good reason at the time of the dismissal for believing the employee had engaged in misconduct. This focus on the behaviour of the employer recognizes that it is the employer who bears the burden of unfair dismissal law - most successful unfair dismissal claims result in an award payable by the employer to the employee - and so natural justice demands that the employer should have this burden imposed only if its own behaviour is blameworthy.
Several justifications have been offered for the intervention of unfair dismissal law in the employer's ability to manage its own business: redressing the imbalance in bargaining power between employers and employees; protecting a property right that employees have, or ought to have, in their jobs; and protecting the dignity and autonomy of employees. The best explanation is probably offered by Hugh Collins who claims that the goal of unfair dismissal law is to offer some degree of protection to the dignity and autonomy of employees in the context of employment and potential dismissal ([2] Collins, 1993). The protection of these values is far from absolute, and in many cases...