Unfair Dismissal, Constructive Unfair Dismissal and Wrongful Dismissal

When issues develop between an employer and an employee, one outcome may be the termination of the employment contract. An employer may choose to terminate an employee’s employment after following a procedure dealing with disciplinary, performance or capability issues, and an employee may choose to resign from their employment if their grievance is not addressed to their satisfaction.

The specialist employment law team at O’Donell Solicitors can work to understand the issue, provide guidance throughout the relevant procedure and, if there is a dismissal, advise on any resultant claim to the Employment Tribunal.

What is Unfair Dismissal?

Unfair dismissal is a key concept in employment law that protects employees from being dismissed without a valid reason or without their employer following a fair and reasonable procedure.

Under the Employment Rights Act 1996, an employer must have a valid reason for dismissing an employee. Potentially fair reasons include:

• Conduct – misconduct by the employee such as theft, dishonesty or poor behaviour.

• Capability – poor performance or ill-health affecting the employee’s ability to do the job.

• Redundancy – the job role is no longer needed.

• Statutory Illegality – continued employment would break the law, for example being disqualified from driving when this is a fundamental part of the job role.

• Some Other Substantial Reason (SOSR) – a catch-all category for other valid reasons such as a breakdown in working relationships, the expiry of a fixed term contract or an employee refusing to agree new terms and conditions of employment.

In addition to being for a valid reason, an employer must follow a fair procedure when dismissing an employee. This means that employers should follow their own internal policies and procedures and, where relevant, ensure compliance with the ACAS Code of Practice on Disciplinary and Grievance Procedures.

For disciplinary, performance and capability matters, multiple factors must be considered to ensure that a fair procedure is followed. A thorough investigation should be carried out. The employee should be given details of the issue and the evidence collated during the investigation and invited to a meeting where they are given the opportunity to respond. The employee should be advised of their right to be accompanied by a workplace colleague or a trade union representative to the meeting. The employee should be advised of the outcome of the meeting and, where appropriate, of their right to appeal any decision that has been made.

What is automatic unfair dismissal?

Dismissals may be considered to be automatically unfair if the dismissal was for one of the following reasons:

• making a flexible working request
• being pregnant or on maternity leave
• wanting to take family leave (parental, paternity or adoption leave)
• being a trade union member or representative
• taking part in legal, official industrial action
• asserting a statutory right
• performing jury service
• whistleblowing
• a health and safety issue

What is constructive unfair dismissal?

Constructive unfair dismissal is where an employer commits a fundamental breach of the employment contract and the employee resigns in response to that breach. The alleged breach of contract may relate to one serious incident or a series of incidents.

Common situations that may amount to a fundamental breach of the employment contract include unilateral changes to terms and conditions of employment, stress at work, harassment or bullying in the workplace, failing to address grievances, unfair disciplinary action and breaching trust and confidence.

Constructive unfair dismissal claims are difficult to win at an Employment Tribunal so it is important that employees seek legal advice before resigning from their employment. The employee must not affirm the contract by acting in a way that suggests that they have accepted the breach. The employee should usually raise the matter informally and utilise the internal grievance procedure before resigning.

Who is eligible to bring a claim for unfair dismissal?

In order to bring a claim for unfair dismissal, the individual must be an employee and not a worker or a self-employed contractor. The employee must have at least two years of continuous service with the employer, unless there has been an automatically unfair dismissal where no minimum continuous service period is required.

What is the time limit for unfair dismissal claims?

An employee must file a claim for unfair dismissal with the Employment Tribunal within three months less one day of the effective date of termination.

Early ACAS conciliation is required before filing a claim with the Employment Tribunal. Commencing early ACAS conciliation before the expiry of the limitation period for bringing the claim will result in an extension of up to six weeks.

Failing to file a claim with the Employment Tribunal, or commencing early ACAS conciliation, within the limitation period will mean that the claim will be statute barred and no further action can be taken in relation to it.

The time limit can be extended by an Employment Tribunal if it decides that it was not reasonably practicable for a claim to have been presented within the limitation period. It can be difficult to persuade an Employment Tribunal to exercise its discretion to extent time for presenting the claim. It is therefore imperative that specialist employment law advice is sought as soon as possible if an employee wants to make an unfair dismissal claim.

What are the remedies for a successful unfair dismissal claim?

If an Employment Tribunal finds that a dismissal was unfair, it can award:

• Reinstatement – the employee gets their job back.
• Re-engagement – the employee is rehired in a similar role.
• Compensation – comprised of a basic award and a compensatory award.

Is wrongful dismissal the same as unfair dismissal?

No. A wrongful dismissal is when an employer has breached an employee’s contract, usually by failing to give proper notice to terminate the employment or by failing to pay the correct amount of notice pay.

As with unlawful deductions from wages claims, a wrongful dismissal claim can be brought in either the Employment Tribunal (for claims up to £25,000 only) or the County Court and it does not matter how long an employee has been employed.

The limitation period for a wrongful dismissal claim is 3 months less one day for the Employment Tribunal and 6 years for the County Court.

Compensation is generally limited to the financial loss arising from the breach of contract, usually the unpaid notice pay.

Contact our specialist unfair dismissal solicitors

The Employment Team at O’Donnell Solicitors has specialist knowledge and experience in helping both employers and employees to navigate unfair dismissal claims and employment tribunal procedures. We offer a personalised approach tailored to your specific needs and circumstances. In all cases we provide clear explanations of the process, costs and potential outcomes. 

For employees, we can provide advice on your employment situation and any process that your employer has engaged. If your employment is terminated, we can assess the strength of your claim, guide you through the process of making a claim for unfair dismissal compensation, and ensure that your secure fair compensation, reinstatement or re-engagement.

For employers, we can provide training on best practice and advice on fair procedures to minimise the risk of claims. If an unfair dismissal claim is filed, we can help defend the claim and protect your business interests.

If you would like to speak to one of our specialist solicitors about an unfair dismissal claim, please contact the Employment Team at 01457 761 320 or e-mail enquire@odonnellsolicitors.co.uk.