Constructive and Unfair Dismissal

Sometimes, matters do not pan out as we would hope, and we are here to help and support you during those times. If your employer has dismissed you, we can advise whether you have a Unfair or Constructive Dismissal claim.

What is dismissal?

Dismissal is the termination of an employee's employment. Under UK employment law, there are three types of dismissal:

• Termination by the employer;
• Expiry of a limited-term contract; and
• Constructive dismissal.

Termination by the employer involves an employee being released with or without notice, depending on the terms of their employment contract. This may include:

• An employee resigning after being given notice by their employer and;
• A unilateral change of terms imposed by an employer as termination of the existing contract and re-engagement under the new contract.

The expiry of a limited-term contract means the employee is employed for a limited time (such as under a fixed-term contract), and the employer terminates without being renewed under the same contract.

Constructive dismissal arises when employees terminate their contract without notice because of their employer's unacceptable conduct. It has been established that constructive dismissal occurs when:

There are several fundamental (serious) breaches an employer can breach, including:

• Non-payment of wages
• Demotion,
• Change to a job description without agreement
• Undermining or destroying trust and confidence;

The employee should resign promptly with or without notice in response to that breach. A delay may indicate the breach has been waived or accepted.

Can I claim unfair dismissal?

To be eligible to bring a claim of unfair dismissal, you must:

• Be an employee;
• Have two years of continuous service and
• Have undertaken a role with a substantial connection with Great Britain rather than any foreign jurisdiction.

Potentially fair reasons for dismissal

An employee's dismissal may be acceptable if it falls within the five potential reasons:

• Capability – which may include health as well as aptitude and skill set
• Conduct – misconduct or gross misconduct
• Redundancy;
• Breach of a statutory duty such as a loss of driving licence, failure to secure specific qualifications or because continued employment may break immigration rules.  
• Some other substantial reasons may include a breakdown in relations, termination due to a change of terms and conditions (dismissal and re-engagement) or age-related issues.

Reasonableness of the dismissal

Once an employer has established a potentially fair reason for dismissal, an Employment Tribunal (ET) must decide whether the employer acted reasonably in dismissing the employee.

The ET follows a two-part test to determine fairness, firstly considering whether the employer acted reasonably in dismissing the employee for that reason. The ET will then need to ensure this in accordance with equity and the case's merits.

Automatically unfair dismissals

In some circumstances, dismissal is automatically unfair, including dismissals linked to pregnancy or childbirth, whistleblowing, health and safety and asserting statutory rights. For most automatically unfair dismissal cases, an employee does not need two years' service to bring forward a claim.  

Remedies for unfair dismissal claims

Where an ET finds an employee has been unfairly dismissed, three remedies will be considered:

• Reinstatement
• Re-engagement; and
• Compensation

In cases where reinstatement or re-engagement are considered, an ET will ask the claimant if they are open to either. Reinstatement treats the employee as if they were never dismissed, and re-engagement means the employee will be re-engaged on comparable terms or in other suitable employment.

Compensation is typically awarded in successful unfair dismissal claims, consisting of a basic award and compensatory award. The basic award's formula is calculated based on the employee's age, length of service and weekly pay, and the compensatory award consists of such amount that the ET considers is just and equitable based on the employee's financial loss following their unfair dismissal.

Get in touch

Please contact our Employment Litigation team for further help and guidance and to check if you have a case for unfair dismissal. We can provide you with friendly advice and support. You can contact our team on 023 8063 9311 or email enquiries@warnergoodman.co.uk.