Constructive & Unfair Dismissal

Always meets the Company’s expectations

Unfair Dismissal

We will assist you in undertaking risk assessments regarding any dismissals you may propose to limit common place claims being brought against your business.

Compensation for unfair dismissal is usually only available to employees who have worked for their employer for at least two years (less if the dismissal is for discriminatory or for any other automatic reason such as whistleblowing). An employment tribunal will consider whether the employee’s dismissal was fair or unfair by looking at a range of factors including:

  • the reason for the dismissal
  • whether the employer acted reasonably

 

For a dismissal to be fair the employer must:

  1. conduct an investigation;
  2. follow a fair procedure;
  3. have a fair reason to dismiss; and
  4. there be no reasonable alternative.

 

An employer can rely on one of the following reasons to dismiss:

  1. capability (poor performance/ill health/qualifications);
  2. misconduct;
  3. redundancy;
  4. statutory illegality; and
  5. some other substantial reason sufficient to justify dismissal.

Constructive dismissal (resignation)

Constructive dismissal is the term used where an employee resigns in response to their employer's conduct in breach of an important term of their employment contract. It can be an express contractual term such as reducing their pay or it can be where their mistreatment leads to the implied term of mutual trust and confidence being broken.

What compensation may an employee be entitled to?

If an employee is successful in his claim for unfair dismissal (or constructive dismissal), he will be entitled to a basic award calculated on the basis of his age, salary and length of service. In addition, an employment tribunal has discretion to make a compensatory award for any loss flowing from his dismissal. This takes into account the loss of earnings from the date of termination of employment. However, the tribunal will look at whether the employee has taken reasonable steps to mitigate (reduce) his loss (for example, by looking for another job). This obligation starts from his last day of employment, including the duration of the period that would have been his notice period.

If the employee finds another job quickly, any compensation payable will be reduced by the amount of money he earned during the period that would otherwise have been his notice period. An employment tribunal may reduce compensation payable if it finds that the employee has not taken reasonable steps to seek alternative employment.

What other remedies are there?

Whilst not common a Tribunal can also make an order for reinstatement (returning the employee to their original job) or re-engagement (returning the employee to another suitable job).

We can support and guide you through any disciplinary, grievance or contractual process to help avoid any successful claims against you.

Legal Briefings

We also have easy to follow guidance on this and a range of topics here.

Employment solicitors

If you would like further information, please contact Reena Sharma or Stacey Edgley at our Farnborough office or Mel McCrum at our Ash Vale office. They are all members of the Employment Lawyers Association.