Unfair and Constructive Dismissal

If you believe you have been unfairly dismissed, you may be able to bring a claim for unfair dismissal. In this event, you should contact us now on 01604 700099.

A claim of unfair dismissal must usually be brought within 3 months from the effective date of the termination of your employment. It is therefore imperative that you act quickly and obtain advice in order to submit your claim to an Employment Tribunal within the time limit.

The law on unfair dismissal in brief is as follows.

Unfair dismissal

Employees normally have to have two years of service to bring a claim for unfair dismissal although there are some exceptions set out below. In determining whether dismissal of an employee is fair or unfair, your employer will need to show the reason for the dismissal genuinely falls into one of the following categories:

Capability

If an employee does not have the qualifications necessary to do the job or is incapable of doing the job because of incompetence or ill health, it may be fair to terminate their employment. However, if the dismissal was due to ill health and that constitutes a disability under the Equality Act 2010 and no reasonable adjustments were considered, that may give rise to a claim for unfair dismissal as well as a claim for disability discrimination.

Conduct

This is dismissal due to the conduct of the employee. It could be for a one-off incident, which would amount to gross misconduct or it could be for a series of repeated conduct offenses where previous warnings were given. Gross misconduct would include, for example, fighting, theft, being under the influence of alcohol at work, etc. In order for the dismissal to be fair, the employer must have a genuine belief in an employee’s guilt having first carried out a reasonable investigation and the decision to dismiss must be relative to the conduct taking all circumstances into account. You should check your contract to see what constitutes misconduct. Are these provisions applied fairly across the workforce? Are there any mitigating circumstances that were not taken into account in taking the decision to dismiss? Were previous warnings given? Was a fair and reasonable investigation undertaken before a decision was reached?

Redundancy

A role is made redundant not the person. A role is redundant where the work which the employee was employed to do has ceased or diminished or is expected to do so. This could, for example, arise due to the employer moving premises or because of a decrease in workload. The redundancy process should be fair and unbiased. This should entail warning and consultation before a decision to dismiss is taken. If there are employees doing the same job as you or similar and they were retained, then check to see if you were put in a selection pool with them and the selection criteria were marked fairly. Fair consultation also includes exploring with you suitable alternative employment within the organization. Was there a vacancy in the organization which you could do but were not given the chance to apply for? Special rules apply if you are on maternity leave and are being made redundant.

Illegality

This is where it would be illegal for you to continue in your role. For example, if you were a lorry driver and lost your license, you could no longer do the job. In this event, your employer should discuss any alternatives to dismissal with you but if none are available dismissal may be fair.

Some other substantial reason

This is very wide and is meant to be a catch-all category, which covers situations not falling into the above categories. For the reason to be valid, it must be for a substantial reason such as to justify dismissal.

If your dismissal was not for one of these reasons or you are concerned about the fairness of the reason given then you should seek legal advice.

Procedure

Even if your dismissal was for one of these reasons, your employer must follow a fair procedure and treat the reason as sufficient to justify dismissal. This means that the employer followed a fair procedure before making the decision to dismiss and that the sanction of dismissal was a reasonable decision to take in all the circumstances.

Therefore, even if the dismissal was for a genuine reason, the dismissal may still be unfair if an unreasonable procedure was adopted or worse, there was no procedure at all or dismissal (as opposed to a warning for example) was too harsh a sanction.

You should consider whether to appeal the decision to dismiss you (unless you resign in which case no appeal is necessary) By appealing there is a chance your dismissal could be overturned. This is good news for getting your job back but could impact on any claims you may have. Failing to appeal can reduce any compensation awarded to you by 25%.

Automatically unfair dismissals

There are some reasons for dismissal which are automatically unfair. This means that you do not need two years of service to bring a claim if the reason for your dismissal was automatically unfair. If you believe your dismissal was in truth due to or related to any of the reasons below, then your dismissal may well be automatically unfair:-

• Pregnancy, childbirth, or family leave
• Health and Safety Reasons
• Acting as a representative in specific situations
• Whistleblowing
• Taking part in protected industrial action

The above are only examples. There are many more, so seek legal advice if you have been dismissed.

Constructive Unfair Dismissal

If you felt that you had no alternative but to resign because of the way your employer has treated you then this can still amount to unfair dismissal and you could bring this claim to an Employment Tribunal if the circumstances of your case mean you have a claim.

What are the elements of constructive dismissal?

There are four elements in a constructive dismissal claim as follows:

• There has to be a breach of contract by the employer. This can be actual or anticipatory. The breach can be a breach of an express term (e.g. pay) or breach of an implied term (e.g. the implied term of mutual trust and confidence);
• The breach must be sufficiently important to justify the employee resigning or the last in a series of incidents which justifies leaving;
• The employee must leave in response to the breach and not for some unconnected reason; and
• The employee must resign promptly.

Should you raise a grievance?

You would not be barred from bringing a claim for constructive unfair dismissal without having raised a grievance first. However, it is advisable that you do raise the matter as a grievance with your employer first because if you do not and go straight to the Tribunal with your claim, any compensation awarded to you can be reduced by up to 25%.

Time Limits

You should note that the time limit for bringing a claim of unfair dismissal (Constructive or Ordinary) in an Employment Tribunal is 3 months from the effective date of termination of your employment. Ideally, you should not leave it to the last minute and submit your claim as soon as possible. Irrespective of whether or not your grievance or appeal is still ongoing when the 3 months time limit is due to expire, you should not miss this deadline for lodging your claim.

It is a requirement in almost every claim to commence ACAS early conciliation. If you try and bring a claim in the Tribunal before you have done this is may be rejected or be invalid. This ACAS early conciliation impacts on time limits and may mean you have additional time but the rules are complex and it is best to take advice on this. The key thing is to commence ACAS early conciliation within the three-month time limit to bring a claim and to seek advice as early as possible.

If you require assistance in raising a grievance or have already done so and wish to take the matter to an Employment Tribunal for employment law advice for employees, then Contact us now for specialist advice.