Employment relationships can sometimes break down, leading to disputes about the way someone’s employment has ended. Terms like unfair dismissal, constructive unfair dismissal and wrongful dismissal are often used interchangeably, but in law they have very different meanings and consequences. At O’Donnell Solicitors, we advise both employers and employees on these complex issues, helping to resolve disputes quickly and cost-effectively while minimising risk.
What is Unfair Dismissal?
Unfair dismissal occurs where an employee with at least two years’ continuous service is dismissed without a fair reason or where a fair process has not been followed.
The law outlines a number of potentially fair reasons for dismissal, such as conduct, capability, redundancy, or “some other substantial reason”. Importantly, employers must follow a fair disciplinary or dismissal procedure.
If either the reason or the process is lacking, an Employment Tribunal may find the dismissal unfair.
What is Constructive Unfair Dismissal?
Constructive dismissal arises when an employee resigns in response to their employer’s conduct. For example, if the employer fundamentally breaches the employment contract – perhaps by failing to address grievances, changing terms without agreement, or creating an intolerable working environment – the employee may feel forced to resign.
Although the employee resigns, the law treats it as if they were dismissed by the employer. The claim then proceeds in a similar way to unfair dismissal and is subject to the same two-year qualifying period.
What is Wrongful Dismissal?
Wrongful dismissal is different. It is a contractual claim, not about the fairness of the dismissal but about whether notice pay or contractual rights have been breached.
For instance, if an employer dismisses an employee without giving proper notice (or pay in lieu), they may be liable for wrongful dismissal.
This type of claim can be brought by employees in either the Employment Tribunal or the civil courts.
Disciplinary and Grievance Procedures
Whether you are an employer or an employee, disciplinary and grievance procedures are critical. For employers, following a fair and transparent process in line with the ACAS Code of Practice is essential. Failing to do so can expose the business to claims, reputational damage and unnecessary cost.
For employees, engaging properly with grievance or disciplinary processes can strengthen your position in any future claim. It demonstrates reasonableness and ensures concerns are formally recorded.
It is important to note that if an employer fails to follow the ACAS Code in disciplinary or grievance situations, an Employment Tribunal has the power to increase compensation by up to 25% where a claim succeeds. This can make a significant difference to the value of a claim and to the risks faced by employers.
How We Can Help
At O’Donnell Solicitors, we provide clear, pragmatic advice to both employers and employees.
- For Employers – We draft and review disciplinary and grievance procedures, guide managers through fair processes and represent businesses in defending Employment Tribunal claims. Our goal is always to minimise risk and cost while protecting the organisation’s reputation.
- For Employees – We advise on grievances, disciplinary hearings and potential claims for unfair dismissal, constructive dismissal or wrongful dismissal. We provide representation in Employment Tribunals to ensure your rights are protected and you achieve the best possible outcome.
Get in Touch With our Employment Solicitors
If you are facing a workplace dispute, early advice is key. Our team can advise both employers and employees, combining technical expertise with a straight-talking approach.
Contact our Employment Law Department today to discuss your situation in confidence.
Call: 01457 761 320
Email: kenneth.lees@odonnellsolicitors.co.uk
Enquire: Complete our online enquiry form
Visit: www.odonnellsolicitors.co.uk
