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Dismissal may be fair where employer ignorant or mistaken as to the law

The Inner House of the Court of Session has considered the effect of an employer taking action against an employee which amounts to a dismissal in circumstances in which the employer has either failed to consider the legal consequences of its action, or has taken a mistaken view of what those consequences would be. The court held that while a dismissal in those circumstances may be fair, neither the employer's failure to consider the consequences, nor the mistaken view it took of them, would of themselves make the dismissal fair.

The tribunal's task was to reach a view on fairness having considered all the facts and circumstances, having regard to equity and the substantial merits of the case. That involved an assessment of both parties' interests. In this case, the tribunal had failed to properly consider whether the employer's ignorance of the law was excusable and, if it was, whether that was a decisive consideration or one that was outweighed by other factors. (Docherty and another v SW Global Resourcing Ltd [2013] CSIH 72.)

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