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Unfair-Constructive Dismissal

We provide expert guidance on unfair-constructive dismissal, the legal options available and represent clients in negotiations and tribunal proceedings. Whether you are an employer facing an unfair dismissal claim or an employee seeking to challenge a constructive dismissal, we are here to provide you with the legal support you need.

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Unfair Dismissal

 

Any potential claim for Unfair Dismissal starts with a dismissal where the employer is the one who has brought the contract of employment to an end.  

 

If you resigned your employment, then this will be Unfair/Constructive Dismissal which is dealt with below.

If your employer has ended your employment, then you should consider whether your dismissal was fair. If your employer did not have a good reason for dismissing you and/or failed to follow a fair procedure when doing so you may well have a claim for Unfair Dismissal.

In a claim of Unfair Dismissal, the onus is on the employer to demonstrate to the Employment Tribunal that they had a fair reason for dismissing the employee and, that they followed a fair procedure in doing so.

 

Employers can only dismiss employees for a reason which falls into the fair reason for dismissal categories set out by the Employment Rights Act 1996. Those reasons are:-

  • that the employee lacks capability or qualification for their job

  • that the employee committed an act (or acts) of misconduct which justifies their dismissal

  • that there was a genuine redundancy (please see our Redundancy pages)

  • that continuation of employment would contravene a statute

  • some other substantial reason – is often used as a catch all and can be used for various reasons

In considering the procedure followed, the Employment Tribunal will have regard to whether the employers followed the ACAS Code of Practice – Disciplinary and Grievance Procedures. They will compare the conduct of the employer against the minimum standards in the Code. In the event the Employment Tribunal considers a fair procedure was not followed, then they may consider your dismissal was unfair, and also include an uplift on compensation awarded.

Not all employees can bring a claim for Unfair Dismissal, you will need to have been employed by your employer for a minimum of two years . However, there are exceptions to this rule, for example if you have been dismissed because you are a whistle-blower or are dismissed due to pregnancy or maternity leave which is discriminatory.  There are other exceptions to the two year rule which may apply to you. 

Also, if you are dismissed close to the two year deadline, but your statutory notice period would take you over that deadline, you can be deemed to have two years service.

What is Automatic Unfair Dismissal?

 

As explained above, usually, an employee needs two years of continuous employment to claim unfair dismissal. However, individuals can claim automatic unfair dismissal even when they have been employed for less than two years. 

An automatic unfair dismissal as defined under the Employment Rights Act 1996 means that an employer terminates employment for wrong reasons. This legislation details situations where a dismissal will automatically qualify as unlawful.

The Equality Act 2010 identifies nine protected characteristics that every employer must safeguard in the workplace. This means if an employee is treated unfavourably or dismissed for reasons related to these characteristics, an employee can claim automatic unfair dismissal through discrimination without having two years of continuous employment.

Another reason which is growing momentum are acts related to protected disclosures, workers’ rights, and freedom of association.  In whistleblowing cases an employee can have a solid case of automatic unfair dismissal if an employer dismisses them for raising concerns of wrongdoing in the workplace.

The most common reasons for automatic unfair dismissal that we have represented (which is a non exhaustive list) includes:

  • Dismissal or pressure to leave for pregnancy, childbirth, adoption, or parental duties

  • Whistleblowing for workplace related concerns (health & safety, workers’ rights and treatment, policies and procedures, discrimination)

  • Employee actions at work on health & safety grounds

  • Participating in protected industrial action

  • Asserting a statutory right including statutory sick leavestatutory notice period and statutory maternity pay)

  • Asserting or trying to assert pay and working hours, contractual and legal rights, and requirements.

Compensation for automatic unfair dismissal usually includes an amount paid to the worker for the time they spent out of work and lost income.  The calculation of this is multiplying the number of weeks/months without work.  There is a cap on the weekly amount of £700 per week for dismissals after 6 April 2024. There is a cap on unfair dismissal claims, currently £115,115 from 6 April 2024. 

There is also an option for re-employment - reinstatement if wrongfully dismissed.

Constructive Dismissal

 

Constructive dismissal claims can arise for various reasons where an employee feels aggrieved about their employers' conduct.  We would not advise any employee to resign from their employment at least not without the take legal advice.  Our clients who we have represented have done so because they felt they had no other way, because they just could not continue to work in the conditions they were experiencing. They have felt forced to resign for bullying at work, pay problems, unfair performance management, unfair workloads, lack of support for disabilities etc. 

Constructive dismissal claims are very difficult to pursue and, if you are considering resigning in contemplation of a claim to the Employment Tribunal, there are some useful points below:-

  • The same as ordinary unfair dismissal, you will usually have to have worked for your employer for two years before you can bring a claim of constructive dismissal at the Employment Tribunal. If you do not have two years’ service, there are some exceptions to the two-year rule and other types of claim (for example discrimination) which do not require any minimum period of employment before you can pursue a claim. However, this is something you need to consider before submitting your resignation in anticipation of a constructive dismissal claim.

  • Constructive dismissal is where you resign or leave your employment immediately in response to a serious breach of your contract of employment by your employer. Your employer’s conduct must be so serious as to be a “repudiatory breach” of your employment contract.

  • Your employer’s conduct must be more than them being unreasonable or unhelpful. It must be a repudiatory breach of a fundamental term of your employment contract. This could be an express term, for example a serious pay dispute. Alternatively, it might be a breach of an implied term, for example a serious breach of “trust and confidence”.

  • You cannot wait too long after the breach to resign.  Your resignation must be in response to the breach of contract by your employer.   If you do nothing, the Employment Tribunal may conclude you have accepted your employer’s breach of contract. More and more cases coming through are delayed resignations in the hopes that a resolve may come and things get back to how they were.  Whilst this is a sensible strategy to try to resolve the issues, it is difficult to demonstrate that the breach was sufficiently serious.

 

  • ​The Employment Tribunal will expect an employee to use any internal Grievance or Complaint policy the employer has.

  • If the employer has no grievance policy which would be unusual, they will be expected to abide by the ACAS Code of Practice on Disciplinary and Grievance Procedures.

  • If you fail to use the internal policy before submitting your resignation this could result in any subsequent compensation awarded being reduced by up to 25%.

  • When you submit your resignation, you must ensure your employer knows that you are resigning in response to their breach of your contract of employment. You must state as detailed as possible how you believe the employer has breached the contract  and how this has caused you to resign. Your resignation letter is key evidence, therefore you must keep a copy.

When should you start a claim?

 

You must submit your claim to the Employment Tribunal within three months less one day of your dismissal or resignation. You use the last day of your employment as the first day when calculating the time limit. For example, if your last day of employment was 30 May, your claim would need to be submitted to the Employment Tribunal on or before 29 August.  

Important

Please note, before submitting your claim you will first have to go through the ACAS Early Conciliation Process. We explain in detail the process here.

Employment Tribunal time limits can be extended if you are going through the conciliation process when your Employment Tribunal time limit would normally expire. However, if you do not start the ACAS Early Conciliation Process within the normal time limit, you will not receive any extension to submit your claim.

Employment Tribunal time limits are incredibly strict and if you have been dismissed you should seek legal advice immediately. Claims submitted “out of time” will not be accepted by the Employment Tribunal and in those circumstances your ability to pursue your claim will be lost.

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