Constructive and Unfair Dismissal Explained

19 April 2018

Unfair dismissal occurs when an employer terminates an employee’s contract without good reason or without following the correct procedure. Constructive dismissal occurs when the employee terminates the employment themself as a direct result of the conduct of their employer.

What is Constructive Dismissal?

Constructive dismissal happens when an employer acts in such a way that causes their employee to resign from their job. In short, the employee is forced to terminate their employment against their wishes because of actions taken by their employer. The actions of the employer must amount to a fundamental breach of contract. For example, it may be that the employer demotes the employee for no apparent reason, or that they let other employees harass and bully the employee. 

Other examples of employer conduct that could amount to constructive dismissal include forcing the employee to accept unreasonable changes to their employment, such as moving them onto a different shift or changing the work that they do. If the employee then feels that as a result of these actions, their only option is to terminate their employment then this could amount to constructive dismissal.

The conduct of the employer could be made up of a series of smaller incidents, which may appear minor on their own but are serious when put together, or it may simply be one serious incident.

What is Unfair Dismissal?

Unfair dismissal is when an employer terminates an employee’s contract without having good reason for doing so or without following the correct formal disciplinary or dismissal process.

Most employers will have a formal disciplinary and dismissal process, of which employees will usually be provided with a copy. If you’re unsure what your employer’s disciplinary and dismissal procedure is, details of this might be available in an employee handbook or on the employer’s intranet. Your HR department should be able to help you to locate this.

A dismissal is likely to be unfair if it has happened as a direct result of the employee exercising their rights in relation to the following:

  • The Working Time Regulations, annual leave or the National Minimum Wage
  • Pregnancy or maternity, paternity leave, parental leave (for birth or adoption) or taking time off for dependants
  • Acting as an employee representative or being a member of a trade union
  • Taking part in industrial action (which lasted for a maximum of 12 weeks)
  • Working either part-time or on a fixed-term contract
  • Whistleblowing (exposing wrongdoing that is happening in the workplace)
  • Receipt of Working Tax Credits
  • Taking time off for jury service.

This means, for example, that an employee cannot be dismissed for exercising their right to take rest breaks that they are entitled to, or for joining a trade union. Both of these instances are likely to amount to unfair dismissal. 

Another situation in which dismissal might be unfair is if an employee is forced to retire without their employer being able to objectively justify their reasons for this. Compulsory retirement may be permitted if the employer can prove that they have an objective reason for doing so. If an employee feels that they have been forced into retirement without justification, they can challenge the decision at an employment tribunal.

Have You Been a Victim of Unfair or Constructive Dismissal?

In order to claim unfair dismissal, you must be an employee and have been working for your employer for 2 years or more. You must also lodge your claim within 3 months, less one day, of the date of your dismissal, so it’s important to act fast.

If you believe that you have been unfairly dismissed, the first step you should take is to ask your employer to provide a written statement, outlining the reasons for your dismissal. If you have been working for an employer for at least 2 years, your employer is obliged to provide this statement within 14 days of the request. If you have been dismissed while on maternity leave, then you are entitled to this statement even if you don’t ask for it and regardless of how long you’ve worked for your employer.

It’s best to obtain independent legal advice from an Employment Solicitor before you begin the claim process. The Solicitor will be able to discuss your circumstances, explain the next steps and advise you on your chances of success.

If you think you have grounds for constructive dismissal, you should seek legal advice urgently. In instances of both unfair and constructive dismissal, it’s beneficial for you to gather evidence such as emails, letters or text messages, as these can help to support your claim.

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