Unfair dismissal, wrongful dismissal and constructive dismissal

There are many ways to bring an employment relationship to an end, such as resignation, dismissal or redundancy.

Often with dismissals, you may feel that it was decided and / or carried out unfairly or unjustly. We are here to help to consider whether your dismissal should not have taken place as it had, and if so, help you take appropriate action.

The Employment Rights Act 1996 provides five fair reasons for an employer to dismiss you:

  • Your capability or qualifications;
  • Your conduct;
  • Redundancy;
  • Statutory restrictions (preventing you from holding specific roles or performing a type of work); or
  • Some other substantial reason.

Even if an employer is looking to dismiss you for a fair reason, they must follow a fair process that would vary depending on the reason.

If you feel that your dismissal was not fair, or not carried out properly, there are a number of potential claims that might arise and we can help you explore those and decide on the best course of action to proceed.

Unfair Dismissal

A dismissal can be unfair if the reason was not one of the five fair reasons under the legislation. Alternatively, it can also be unfair if no due process was followed. For example, for an employee that was dismissed for their conduct, a disciplinary process must have been followed by the employer for there to have been a finding of misconduct to justify dismissal.

Unless the dismissal is discriminatory or due to making a protected disclosure (or for some other limited reason which we can advise you on) an employee can only bring a claim of unfair dismissal, provided that the dismissal was unfair, if they have at least two years' complete service with the employer. This legislation was changed as of 6 April 2012.

Wrongful Dismissal

A wrongful dismissal claim does not look at whether the dismissal was fair or not. It is more concerned with whether the terms of your contract were adhered to and so usually these claims relate to the lack of adequate notice from the employer.

You would obtain financial compensation for such a claim, which would serve the purpose of putting you back in the financial position that you would have been in if you have received adequate notice, and thus pay.

Constructive Dismissal

This type of dismissal is when you are not dismissed by the employer, but you resign because you have no other option due to the actions of the employer. This could mean a multitude of things, but at its core it means that your employer has done is so severe that you consider your contract of employment to have been breached.

Similar to an unfair dismissal claim, you must have two years' service to bring this claim. This can include any notice period, if any is given.

Beyond assisting you with bringing such a claim to the employment tribunal, we can also advise you before you resign to make sure that you are protecting your position as best as possible and taking all necessary steps to secure the protection of the legislation.

Further information about constructive dismissals can be found in our guide.

For more information

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