Unfair & Constructive Dismissal

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

A claim for constructive dismissal is one whereby you resign from your position but contend that it was due to a serious breach of the employment contract on the part of your 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 your 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 you have the basis to bring a claim, and assist you in seeking to resolve the same.

Can I be dismissed more easily if I’ve been employed for less than 2 years?

At present, unless falling within one of the exceptions, you must have a minimum service of 2 years with your employer before you are able to bring a claim for unfair or constructive dismissal. However, 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 you are claiming that you have been discriminated against.

Employers and employees may also wish to consider entering into a Settlement Agreement as an alternative to dismissal and to avoid the need for lengthy and costly employment tribunal proceedings.

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 you “so badly” that you 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 you have 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:

1. An employer unilaterally changing your terms of employment
   
2. Reducing your salary and/or altering your working hours without prior agreement
   
3. Behaviours towards you that may constitute workplace bullying or harassment and which are not reasonably dealt with by your employer.

How soon do I 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.