Unfair Dismissal and Constructive Dismissal

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The law of unfair dismissal is governed by the Employment Rights Act 1996. If you have two years of continuous service to qualify for a claim for unfair dismissal or if you fall within one of the exceptions that do not require qualifying service, you are likely to be able to bring a claim for unfair dismissal at an Employment Tribunal. Although your employer could fairly dismiss you on the ground of capability, conduct, redundancy or some other substantial reason, your employer must have acted reasonably in treating the reason as a fair reason for dismissal. Your employer is under an obligation to take certain steps, procedural or otherwise, before dismissing you. If the dismissal by your employer is found not to have fallen within a band of reasonable responses of a reasonable employer, the dismissal will be unfair.

You would not need to have worked for a continuous period of two years’ service in the following circumstances to claim unfair dismissal:

  1. If your dismissal is on the ground of pregnancy or maternity.
  2. If your dismissal is on the ground of making a protected disclosure (whistleblowing).
  3. If your dismissal is on the ground that you brought proceedings to enforce a relevant statutory right.
  4. If your dismissal is on the ground that you alleged that your employer infringed a relevant statutory right.

 

There are other exceptions to the general rule that you need two years of continuous service before you can bring a claim for unfair dismissal.

Most employees tend not to want to go back to the same place of work after they have unfairly dismissed. However, if you wish to go back to your place of work, the Employment Tribunal must consider it. If the Tribunal makes an order for reinstatement or re-engagement, the Employment Tribunal is also likely to award you compensation in the form of arrears of pay representing loss of hearings from the dismissal to the date of judgment or reinstatement.

 

If you do not wish to be reinstated or re-engaged, the Tribunal will make an award for compensation which comprises a basic award and compensatory award. The basic award consists of your gross weekly salary subject to a cap multiplied by the complete number of years that you worked (subject to a maximum of 20). A multiplier of 0.5, 1 or 1.5 will be applied to this depending on your age.  The compensatory award consists of an amount that the tribunal considers just and equitable in all the circumstances having regard to the loss that you suffered in consequence of the dismissal in so far as that such loss is attributable by your employer. The compensation may be reduced if it is found that you caused or contributed to your dismissal.

Constructive dismissal

You may have a claim for constructive and unfair dismissal pursuant to Section 95(1)(c) and section 136(1)(c) of the Employment Rights Act 1996 if you resign in consequence of a fundamental breach of contract without too long a delay after the fundamental breach arises. The most common breach by an employer is arguably a breach of the implied term of mutual trust and confidence. Essentially, if your employer has acted without reasonable and proper cause in a manner calculated or likely to destroy or seriously damage its relationship with you, you are likely to be successful in bringing a claim for constructive and unfair dismissal. You would need two years of continuous service to bring a claim for constructive and unfair dismissal, otherwise the claim will be for constructive dismissal only and your compensation is likely to limited to your notice pay. You don’t always need two years of continuous service to bring a claim for constructive and unfair dismissal (see unfair dismissal, above).

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