Why Did the Employer Really Dismiss? The Art of Finding the 'True Reason'

Sir Patrick Elias on Causation: Essential Reading

This month, the Industrial Law Journal published a superb tribute to Sir Patrick Elias by HHJ Simon Auerbach. The article is a forensic examination of Sir Patrick's contribution to our understanding of causation in both unfair dismissal and discrimination law. It repays close study—and here's why.

The "True Reason" for Dismissal

Section 98(1) of the Employment Rights Act 1996 requires the employer to show the "reason" for dismissal. But what happens when malice lurks beneath ostensibly fair grounds?

Auerbach highlights ASLEF v Brady [2006] IRLR 576, where Elias P unpacked the distinction between a potentially fair reason and the operative cause of dismissal. If an employer uses misconduct as a pretext—dismissing where they would not have dismissed others in similar circumstances—then misconduct is not the true reason.

Discrimination: The "Reasons Why" Test

For discrimination claims, the question is whether the protected characteristic materially influenced the decision-maker's mental processes. As HHJ Auerbach explains, this is not legal causation. Per Lord Nicholls in Khan [2001] ICR 1065, the inquiry is subjective: why did the alleged discriminator act as they did?

Remedy: Counterfactual vs Predictive

The article's analysis of compensation principles is particularly valuable. Two scenarios arise:

1. Counterfactual: What would have happened absent the dismissal? Apply a percentage-chance approach (*Software 2000*).
2. Predictive: What will happen in the future? *Wardle v Crédit Agricole* [2011] ICR 1290 establishes a tipping-point approach: assess when the probability of obtaining equivalent work exceeds 50%, and limit future loss accordingly.

Practical Takeaways

• Unmasking pretext: Look for evidence of differential treatment.
• Discrimination: Focus on the influence on the decision-maker's mind.
• Remedy: Distinguish counterfactual from predictive questions.
• Stigma claims (*Chagger*): Evidence is everything; it's not an automatic award.