There has been a substantial amount of discussion around unfair dismissal in recent months, as the new Government has pledged to extend the right to claim unfair dismissal to all employees from the first day of their employment.
It has even mooted giving the right to other “workers” for the first time, with the aim that more of the country’s workforce should benefit from having stable work/greater salary security.
Ahead of any changes which may be announced, we’re looking at the claims you may have currently if you are dismissed.
Unfair dismissal
A dismissal will be unfair if the employer can show that the reason, or principal reason, for the employee’s dismissal was not one of the five potentially fair reasons: –
- Conduct
- Capacity (performance/ health)
- Redundancy
- If continuing the employment would be unlawful (e.g. if the employee lacked a work visa)
- Some Other Substantial Reason (SOSR) – Sufficient to warrant dismissal
An Employment Tribunal finds that the employer did not act reasonably in treating that reason as sufficient to justify dismissal.
This has been interpreted by the courts and tribunals as meaning that the dismissal must be both procedurally and substantively fair and is often referred to as “the reasonableness test”.
The ACAS Code of Conduct on Disciplinary & Grievance Procedures sets out the minimum requirements for procedural fairness for certain types of fault-based dismissals.
Under the current law, the right to make an ordinary unfair dismissal claim is reserved for employees who have completed two or more years of service with their employer.
Some reasons for dismissing someone are automatically unfair and employees do not usually need to have two years’ service to bring such claims and the statutory cap on ordinary unfair dismissal compensatory awards may not apply to these claims. These include: –
- Health and safety-related dismissals
- Dismissals for trade union membership/activities
- Selection for redundancy on discriminatory grounds
- Dismissal of whistle-blowers
- Dismissals related to a TUPE transfer (upon a business sales or the insourcing/outsourcing/re-tendering of a contract)
- Dismissal of shop workers for refusing Sunday working
- Dismissals for asserting certain statutory employment rights e.g. flexible working
- Dismissals related to exercising/refusing to forgo rights under the Working Time Regulations
Constructive dismissal
Also known as constructive wrongful dismissal, this is a situation in which an employee feels forced to leave their employment – they’re essentially accepting that their employer has committed a repudiatory breach of the employment contract (a significant breach going to its very heart).
Whilst these terminations may look like a resignation they are treated as a dismissal.
Constructive dismissal is a type of unfair dismissal so again two years’ service in usually needed before such claims can be brought, except for certain automatically unfair constructive dismissals.
Constructive dismissal claims are often based on the employer having conducted themselves in a way which breaches the implied term of mutual trust and confidence between employer and employee which is implied into all employment contracts.
Sometimes the breach will not result from one act or omission, but as a result of a course of conduct, but there must be some event which is the final straw triggering act.
Timing (when the employee walks out relative to the breach relied upon) can be very significant. Usually, the employee has to act swiftly after a breach occurs, so it cannot be argued that by working on they have acquiesced to any breach and affirmed the contract.
That said, consideration should also be given to trying to resolve matters via the employer’s internal grievance procedures.
Constructive dismissal cases can be more difficult to win before a Tribunal than other unfair dismissal claims because of the need to prove the breach. Even where a breach is proved and the employee resigned swiftly in response to it, it is still open to the employer to argue there was a fair reason for the dismissal (see the 5 potentially fair reasons for dismissal listed above).
Generally, we would recommend employees take urgent legal advice before walking out of a job, so the timing of their doing so, the content of their “resignation letter”, the prospects of any constructive dismissal claim, their ability to fund it, and the possibility of reaching negotiated severance terms instead, can all be carefully considered first.
Wrongful dismissal
Wrongful dismissal is when an employer dismisses an employee in breach of contract / without giving them the notice they are entitled to under their employment contract (or statutory notice if longer). Wrongful dismissal claims are already a day-one right.
Other Claims
There can also be additional claims arising from dismissals, for example a dismissal might be discriminatory (on the grounds of sex/race/disability/age/sexual orientation/religion or belief etc) or could be less favourable treatment due to the employee being a part time or fixed term worker. There is no minimum service requirement for many of these other claims.
For further advice on dismissal and your rights as an employee, please contact our team today.