Unfair Dismissal and Constructive Dismissal

Unfair Dismissal and Constructive Dismissal

As an employer, you may need to terminate an employee’s contract of employment. Both the reasons for ending their contract and the process used must be fair, otherwise they may be able to bring a claim against you.

Straightforward, practical advice

At Goodwyn Herrera we can advise you on how to proceed if you are facing a claim of unfair or constructive dismissal by an employee. We have experience across a range of sectors and will work with you to resolve matters as quickly as possible with minimum disruption to your business.
We understand the importance of keeping your organisation running smoothly and you can be sure that we will have your commercial interests in mind every step of the way.
Wherever possible, we aim to settle disputes out of court. This is usually far quicker and more cost-effective and will enable you to return your focus to your business. If a case against you does proceed to an employment tribunal, we will mount a strong defence on your behalf.

Unfair dismissal

When an employee has worked for you continuously for at least two years, they have the right not to be unfairly dismissed. Fair reasons for dismissal include the following:
Misconduct
Capability, performance or qualifications
Redundancy
Where it would be in breach of a law if they were to continue in their job
Some other substantial reason
The emphasis will be on you as the employer to justify the dismissal and show that you have acted fairly.
As well as having a fair reason for dismissing someone, employers also need to follow a fair process. Even if the reason given is fair, failure to implement the right procedure may allow an employee to bring a claim for wrongful dismissal.
The Advisory, Conciliation and Arbitration Service (Acas) has a code of practice on disciplinary and grievance procedures. Following this procedure, as well as any internal process that you may have, will help demonstrate to an employment tribunal that you have acted fairly.
There are a number of reasons that are classed as automatically unfair, including reasons relating to pregnancy and maternity, parental leave, insisting on a statutory right, requiring to be paid the minimum wage, trade union activities and whistleblowing. An employee raising a claim in one of these areas does not need to have worked for two years to bring a case.

Constructive dismissal

If an employee feels that they have been forced to leave because of a serious breach of their contract of employment, they may be entitled to bring a claim for compensation for constructive dismissal if they have been continuously employed by you for at least two years.
This will be based on more than unreasonable behaviour; the employee will need to show that there has been a fundamental breach of the contract or of trust and confidence between you. Examples of fundamental breaches of contract include:
Demotion
Unreasonable disciplinary proceedings
A reduction in salary
Harassment or bullying
Unwarranted allegations of poor performance
Stress, such as being overworked, with no attempt to address this
Being forced to work in breach of health and safety rules
If there is a delay between the breach of contract and the employee raising a grievance, then it is possible that this could amount to their acceptance of the breach. If this happens, then their claim might not be successful.

Contact us

At Goodwyn Herrera we are experienced in providing employment law advice to businesses. Our clear and practical advice is designed with your business success and commercial objectives in mind.
If you are faced with the threat of proceedings in respect of unfair or constructive dismissal and you would like to speak to an expert employment solicitor, call us on 020 8187 6495 or email us at enquiries@gwhsolicitors.co.uk to make a free no-obligation enquiry.

Get in touch with us

At Goodwyn Herrera we are experienced in providing employment law advice to businesses. Our clear and practical advice is designed with your business success and commercial objectives in mind. If you would like to speak to an expert employment solicitor, call us on 020 8187 6495 or email us at enquiries@gwhsolicitors.co.ukto make a free no-obligation enquiry.