Unfair or Constructive Dismissal

Unfair dismissal is one of the most common complaints by employees against employers. If you have been unfairly dismissed from your job, our team of expert solicitors may be able to help you claim compensation from your former employer.
We offer a Free initial telephone consultation where we can discuss your case and the options available.

What is a fair dismissal?

Employment law states, a dismissal of an employee will be fair if:

1. The employer can show that the reason (or the main reason) for the dismissal was potentially fair. There are five potentially fair reasons for a dismissal.

And ;

2. If an employment tribunal finds that after taking all the circumstances into consideration – including the employer’s size and resources – the employer acted reasonably in treating the above reason as a sufficient reason for the dismissal. An employment tribunal will need to determine whether the dismissal is both “procedurally” and “substantively” fair.

Since April 2012 an employee needs 2 years’ of continuing service to bring a claim for unfair dismissal. If an employee started before April 2012 they only require 1 year’s continuous service.
There are a number of reasons why you could have been unfairly dismissed. The following are some examples of automatic unfair dismissal:

• Dismissed due to “whistleblowing”
• Dismissed for taking action on a health and safety issue
• Dismissed for being pregnant or being on maternity leave
• Dismissed as a shop or betting shop worker for refusing to work on a Sunday 
• Dismissed for asking for your legal rights – e.g. being paid the national minimum wage
• Dismissed for taking part in trade union activities when you are a trade union member

Employees with two years’ or more service who are dismissed are entitled to request a written statement that sets out the reasons for the dismissal. An employer should provide the written reasons within 14 days of the dismissal.

What is constructive dismissal?

Unlike an unfair dismissal case, which might focus on the employee’s conduct, the focus of a constructive dismissal claim is the employer’s conduct.
To claim constructive dismissal you need to be able to prove that your employer made a serious breach of your contract. As a result of which you resigned with immediate effect.
Examples of constructive dismissal include; 

• Unlawfully discriminating against you
• Attempting to force you to accept a change in working hours
• Harassment
• Refusal of flexible working
• Introducing new duties into your role
• Demotion without following correct procedures 
• Bullying
• Failing to take a grievance seriously
• Reducing your pay without consultation
• Taking performance management action against you when it isn’t appropriate

Employees who resign due to a fundamental breach of the employment contract should make this clear at the time of their resignation.

If you have resigned, or are considering resigning, due to your employer’s treatment of you and you need specialist advice, please get in touch.