Most people’s employment ends amicably and no claim is made against the employer. However, in some circumstances, an employee may have grounds to commence proceedings either in the Employment Tribunal or the Civil Courts. If you are or were an employee and feel like you were unfairly treated please download, complete and return our dismissal questionnaire if you would like a free initial assessment of whether you have a case.
If a dismissal leads to an actionable claim then it will have been either unfair or wrongful. The distinction between unfair dismissal and wrongful dismissal is explained below. In practice, it is common when bringing a claim to argue on an alternative basis for both unfair dismissal and wrongful dismissal. Constructive dismissal is also explained further below but it essentially occurs when the employer does not dismiss the employee but the employee resigns and can show they were entitled to do so because of the employer’s breach of contract. A constructive dismissal may be an unfair dismissal or a wrongful dismissal.
Unfair dismissal is a statutory claim available to employees who believe they have been dismissed unfairly or unreasonably by their employer. If your employer did not have a fair reason for dismissing you or they did not follow the company’s formal disciplinary process, the dismissal is likely to be unfair and you have an opportunity to bring an unfair dismissal claim in the Employment Tribunal.
Potentially fair reasons for dismissal are:
- a reason related to an employee’s conduct;
- a reason related to an employee’s capability or qualifications for the job;
- because of a redundancy;
- because a statutory duty or restriction prohibited the employment being continued; and
- some other substantial reason which justifies the dismissal.
Even with a potentially fair reason, an employer must still act reasonably and follow a fair and reasonable process when dismissing an employee. Only employees who have worked for a certain ‘qualifying period’ (currently two continuous years) have the right to bring a claim for unfair dismissal. Nonetheless, there are several exceptions, which include among other things, employees:
- dismissed for asking for flexible working;
- dismissed for trade union activities;
- dismissed after they have blown the whistle;
- dismissed for performing a health and safety activity;
- dismissed after they had applied for maternity, paternity and adoption leave; and
- dismissed because they were on any maternity, paternity or adoption leave.
Wrongful dismissal is a dismissal in breach of the employment contract, namely dismissal with no notice or with less than the contractual or statutory minimum period of notice. The claim is for the resulting loss. If an employee claims constructive unfair dismissal, it is usual that there is also a claim for wrongful dismissal, since resignation in response to a fundamental breach will be effective immediately.
In certain circumstances an employer can justify dismissal without notice where the employee has committed gross misconduct, such as where the employee has been violent or has stolen something.
Constructive dismissal occurs where an employee decides to resign from their job in response to the employer’s conduct, which must amount to a fundamental breach of contract. The employee’s resignation is treated as an actual dismissal by the employer. The employer’s fundamental breach of contract may be one serious incident or a series of incidents when taken together are serious, for example:
- not being paid on time;
- being suddenly demoted, for no good reason;
- unreasonable changes to how employees work without appropriate consultation – e.g. shift change;
- being bullied/harassed by other employees; or
- falsely accusing you of misconduct such as theft without a proper investigation.
Our employment solicitors provide expert advice to help support you in appealing your dismissal, challenging the dismissal through the Employment Tribunal or negotiating an out of Court settlement. We understand how stressful it can be to face dismissal from your job, and our team of solicitors will take the time to understand your situation and provide the highest quality guidance and support throughout the process.
Please contact us today for a free no obligation consultation by calling either our London, Marlow or High Wycombe offices or by email: firstname.lastname@example.org