Dismissal as a result of a statutory restriction

By law there are 5 potentially fair reasons for legitimately terminating an employee’s employment they are:

1) Redundancy
2) Conduct
3) Capability
4) Some other substantial reason
5) Statutory Restriction

The fifth and final potentially fair reason for dismissal is where there is a Statutory Restriction. This is set out in section 98 (2) (d) of the Employment Rights Act which states:

‘A reason falls within this subsection if it-

(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.’

This reason will apply in circumstances where it is no longer possible to employ someone because of a law, provision or regulation which prevents you from doing so.

Some examples include:

• Where an employee is convicted of an offence which prevents them from working with vulnerable people or children and their job involves working with vulnerable people or children.

• Where an employee whose job requires driving and they lose their licence.

• Where the employee is prevented from working because of their immigration status, i.e. an expiry of their work permit/visa.

• Where the job role requires a certain minimum qualification to do the job and they do not obtain that qualification or fail to maintain their qualification.

In order to rely on this as a fair reason for dismissal you must show that continuing to employ the employee will actually contravene the law, regulation or provision. It will not be sufficient to say that you genuinely believed that they were in contravention and therefore you need to follow up and verify the reason before taking the decision to terminate their employment for this reason.

It is also important to follow a fair procedure when deciding to dismiss for this reason, and this means providing the employee with details of the issue, allowing them to have their say and following up on any points that the employee raises

Please feel free to leave a comment, question or observation below. Alternatively get in touch directly: hello@realemploymentlawadvice.co.uk

This article was written and researched by Alison Colley, Solicitor and Director at Real Employment Law Advice.

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