Experienced, practical and affordable expert legal and tactical advice on unfair dismissal and constructive dismissal for employers or employees. Call or email to find out how we can help.
If you are an employer facing an claim from an employee for unfair dismissal or are an employee who has been unfairly dismissed please call or email us. Our employment lawyers have the specialist expertise and experience to help.
We also advise employees who feel that their position is being made untenable by the employer or are being forced out or managed out on the legal position if they choose to resign and may claim constructive dismissal.
For the reasons outlined below, many unfair dismissal claims overlap with other underlying employment issues. Many unfair dismissal claims also include claims for discrimination. It is often the case that employers are more worried about the discrimination aspect of such claims than the unfair dismissal part.
What makes a dismissal unfair?
A dismissal will be legally unfair where it does not meet the required legal test either on substance or procedure.
In basic terms, Employment Tribunals do not generally second guess a decision to dismiss an employer unless that decision is very obviously for no reason or a reason with no substance. Therefore, it can be difficult for an employee to succeed in many cases based on the actual decision to dismiss.
However, employers are often found to have unfairly dismissed for failing to adequately or at all act in a procedurally fair way before dismissing. The rights of employees to a fair process before being dismissed, in effect, is meant to give the employee the opportunity to challenge any serious disciplinary or dismissal action by the employer, so as to in effect, have a chance to challenge the substance.
It is entirely possible also for a dismissal to be fair but in breach of the employment contract. In addition to the possibility of a claim for unfair dismissal, a breach of employment contract can give rise to a different claim for wrongful dismissal, which is often confused with unfair dismissal. Claims for wrongful dismissal are more common with very senior employees or executives who perhaps have long notice periods, fixed term contracts, shares in the employer or other high value contractual entitlements,
Common reasons for dismissals
Some of the common reasons for dismissals include :
- Gross misconduct – there is no definitive list of employee actions which would constitute gross misconduct but typically it is conduct by the employee which is so serious that formal or final warnings are not appropriate and the employer decides that dismissal is warranted for the conduct . Examples often include employee theft, fighting in the workplace, use of drugs at work.
- Capability – this can either be negligence or incompetence by the employee or incapability due to long term or persistent illness. In both situations there will generally need to be a series of formal warnings given leading up to the final dismissal.
Qualifying period of employment and employment status
The legal definition of who is an employee is not always clear. The Employment Tribunals and courts look at the substance of the relationship rather than the label. This can mean that consultants, freelancers and others may claim to be employees for the purpose of bringing an unfair dismissal claim. Only employees can claim unfair dismissal.
Starting a claim for unfair dismissal – key considerations
- Loss not compensation – Claims for unfair dismissal are loss not compensation based. Consequently, there are many situations where an employee has been unfairly dismissed yet find another job quickly where the loss is low. Employees are under a duty to actively mitigate their losses by seeking suitable alternative employment after dismissal. If you have been unfairly dismissed but the value of your claim is low you may decide it is not worth the time and stress of pursuing a claim.
- Does the claim also allege discrimination? – this makes a significant difference because discrimination claims, if successful, can result in the Employment Tribunal awarding compensation. Employers are often wary of discrimination allegations both in financial terms but also possible damage to reputation in a claim for race, sex, disability or age discrimination. An unfair dismissal claim which also incorporates a discrimination claim may increase the chances of settlement. Proving discrimination is not easy and the onus is on the employee to prove it. This contrasts with unfair dismissal where, after dismissing, the legal burden is on the employer to justify the dismissal.
Constructive unfair dismissal
An employee may feel that he or she has no alternative to resign. In resigning, that employee may have the right to be able to claim constructive dismissal. The key considerations an employee considering resigning and claiming constructive dismissal include :
- Is there a genuine situation where your position is untenable? Has the employer acted in such away as to fundamentally destroy the employment relationship?
- If you feel forced to resign, have you waited before acting? If you have waited too long, this is often considered legally questionable because your claim for constructive unfair dismissal is based on the employer having acted in a way which makes your position untenable?
- Is it better to try and negotiate a departure? Sometimes negotiation may lead to a settlement agreement and some compensation to avoid a dispute. You may be able to leave in a slightly less hostile way and may be able to obtain a reference.
- IF you resign the legal burden will be on you with a claim for constructive unfair dismissal in the Employment Tribunal.