Unfair and constructive dismissal

To bring a claim for unfair dismissal, you will need to be an employee and to have two years’ continuous employment. If your dismissal was for one of the automatically unfair reasons, a claim can be brought from the first day of your employment.

A dismissal from your employment can be a difficult and distressing issue to face. If it was not for one of five potentially fair reasons (misconduct, incapability, redundancy, illegality, such as a driver losing his driving licence, or “some other substantial reason”) or your employer did not take you through a fair procedure, you could potentially have a valid claim for unfair dismissal.

Who can bring a claim?

To bring a claim for unfair dismissal, you will need to be an employee and to have two years’ continuous employment. If your dismissal was for one of the automatically unfair reasons, a claim can be brought from the first day of your employment.

For most claims presented after 6 May 2014, there is now a mandatory period of “Early Conciliation” (“EC”) which must be undertaken prior to a claim being issued. Every prospective claimants must now contact the Advisory, Conciliation and Arbitration Service (ACAS) prior to issuing proceedings, who will then make an attempt to liaise with the parties to settle the dispute. If conciliation is not successful, or a party indicates that they do not wish to conciliate over the matter, the Claimant will receive an EC Certificate. Any Claim Form which is submitted to the Employment Tribunal which does not contain an EC number will be rejected.

Any dismissal connected to one of the nine protected characteristics under the Equality Act 2010 is likely to be unfair. These include discrimination on the grounds of:

  • Age
  • Disability
  • Marriage and civil partnership
  • Gender reassignment
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

Dismissals connected to health and safety, trade union membership, asserting a statutory right, status as a part time or fixed term employee, or making a protected disclosure (often called whistle blowing) are also likely to be automatically unfair.

If your employer acts in a way that undermines the relationship between you, or they commit a fundamental breach of contract (such as withholding wages), you may be entitled to resign and claim constructive dismissal. This means your resignation is actually treated in law as a dismissal because of your employer’s actions. These claims are notoriously difficult to bring and you should seek detailed legal advice before pursuing this course of action.

The ACAS code of practice on disciplinary and grievance procedures

The ACAS code of practice was introduced in April 2009, repealing the statutory disciplinary and grievance procedures.

The code emphasises that employers and employees should always seek to resolve their workplace issues internally before resorting to legal action and it sets out the principles for handling disciplinary and grievance situations fairly.

Unfair dismissal laws require your employer to act reasonably and ultimately a tribunal will decide what was reasonable in the circumstances.

A fair disciplinary or grievance procedure should include an internal hearing at which you can be accompanied by a work colleague or trade union representative. You should be given details of the alleged misconduct or incapability and offered the right of appeal if you are dismissed. The code does not apply to redundancy dismissals.

Employment tribunals are required to take the code into account when considering unfair dismissal claims. If your employer has unreasonably failed to follow its rules, any award of compensation can be increased by up to 25%. However, if you are deemed to have ignored the code, your award could be reduced by up to 25%.

What happens next?

If an employment tribunal decided your dismissal was unfair, you could be re-engaged in another part of your employer's business or reinstated into your role and awarded compensation.

A successful unfair dismissal claim could see you receive a basic award (equivalent to your redundancy pay if you were made redundant) calculated on your age, gross weekly wage (from 6 April 2019 capped at £525) and length of service.

In addition, you may be entitled to a further award, designed to compensate you for any financial loss caused by the unfair dismissal and covering any potential future loss of income. If you have been discriminated against, you may also be awarded damages for injury to feelings.

Another award may be made if your employer fails to comply with a tribunal’s order for reinstatement or re-engagement, unless the company can show it was not practicable to comply. This can be between 26 and 52 weeks' pay, from 6 April 2019 capped at £525.

For more information and details on Tribunal fees, please contact Taylor&Emmet’s employment law experts.

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Simon Brian

Simon Brian

Employment Law
0114 218 4311
Email Simon
Office: Sheffield