Claims for Unfair and Constructive Dismissal

A claim for unfair dismissal is one whereby the employee is unfairly dismissed by the employer (by virtue of there being no valid reason for dismissal and/or that the employer failed to follow a correct dismissal procedure).

A claim for constructive dismissal is one whereby the employee resigns from their position but contends that it was due to a serious breach of the employment contract on the part of the employer.

There are a number of factors which must be taken into account when deciding whether or not a dismissal is unfair and/or whether the employer has seriously breached the employment contract enough to give rise to a claim for constructive dismissal.

Our expert team can assist you in determining, at an early stage, whether your former employee has the basis to bring a claim, and assist you in seeking to resolve the same.

Can I dismiss an employee more easily if they’ve been employed for less than 2 years?

At present, unless falling within one of the exceptions, employees must have a minimum service of 2 years with their employer before they are able to bring a claim for unfair or constructive dismissal. Whilst this may lead some employers to believe that they can therefore merely dismiss anyone who has less than 2 years’ service without worry, this is not necessarily the case.

It is important to note that there are some exceptions to this “2-year rule”. For example, in circumstances whereby an employee is claiming that they have been discriminated against. So, it is always best to obtain specialist advice before dismissing an employee. Employers may also wish to consider entering into a Settlement Agreement with the employee as an alternative to dismissal and to avoid any risk of any future claim.

It is also important to note that the new Labour Government are seeking to bring in further protections for employees so the “2-year rule” may soon be something of the past.

What type of behaviours could lead to a constructive dismissal?

Constructive dismissal can be claimed when an employer has treated an employee “so badly” that the employee had no reasonable choice other than to resign. This can happen for contractual reasons (such as non-payment of wages), but it can also be if an employee has been subjected to discrimination, victimisation or harassment in the workplace.

Some examples of some behaviour which could potentially give rise to a claim for constructive dismissal are outlined below:

• Unilaterally changing an employee’s terms of employment

• Reducing an employee’s salary and/or altering working hours without prior agreement

• Behaviours towards an employee that may constitute workplace bullying or harassment and which are not reasonably dealt with by the employer.

How soon does an employee need to bring a claim for unfair or constructive dismissal?

Claims for unfair and constructive dismissal must be brought within three months of the relevant date (this is known as the ‘limitation period’).

This relevant date is usually the date of dismissal or the last day of the employee’s notice period, but may be some other date depending on the individual circumstances.

There are some circumstances when the limitation period is extended, for example in particular circumstances where ACAS Early Reconciliation is engaged, however it is always best to seek early advice as to your claim in all circumstances.