Unfair, Wrongful and Constructive Dismissal
Constructive dismissal
This is when an employee resigns because you have breached their employment contract. This could be a single serious event or a series of less serious events.
An employee could claim constructive dismissal if you:
A constructive dismissal might lead to a claim for wrongful dismissal.
Wrongful dismissal
This is where you break the terms of an employee’s contract in the dismissal process, eg dismissing someone without giving them proper notice.
Wrongful dismissal isn’t the same as unfair dismissal.
If an employee thinks you’ve dismissed them unfairly, constructively or wrongfully, they might take you to an employment tribunal.
Unfair dismissals
Even if you think you’ve dismissed someone fairly, they could still claim unfair dismissal against you if they think that:
Automatically unfair reasons for dismissal
Even if you’ve acted reasonably, some reasons for dismissal are classed automatically unfair. These are to do with the following areas:
Compulsory retirement on the grounds of age is unlawful unfair dismissal unless you can objectively justify it - but you could be challenged at a tribunal.
Industrial action
It’s automatically unfair to dismiss someone for taking part in official (‘lawful’) industrial action:
If you ‘lock out’ employees taking industrial action, the days of the lock-out are not included in the calculation of the 12-week protected period.
A lock-out is where you prevent employees from getting to their workplace, eg by locking the doors.
Political beliefs and groups
It is not automatically unfair to dismiss someone because of their political beliefs or political groups they belong to, but a tribunal might find this unfair.
There’s no longer a qualifying period for someone going to an employment tribunal if they’ve been dismissed because of political opinions or affiliation. This applies to anyone dismissed from 25 June 2013.
Penalties for unfair dismissals
If a tribunal finds that an employee has been unfairly dismissed, you might be ordered to:
You might also have to pay compensation, which depends on the employee’s:
There’s a limit on the amount a tribunal can award for unfair dismissal, apart from in cases relating to:
Eligibility to claim unfair dismissal
Employees can only claim unfair dismissal if they’ve worked for a qualifying period - unless they’re claiming for an automatically unfair reason.
Qualifying periods:
Date employment started: Before 6 April 2012
When the employee can claim: After first year of employment
Date employment started: After 6 April 2012
When the employee can claim: After 2 years of employment
Who can’t claim unfair dismissal?
The right to complain to a tribunal about unfair dismissal is not available to:
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Constructive dismissal
This is when an employee resigns because you have breached their employment contract. This could be a single serious event or a series of less serious events.
An employee could claim constructive dismissal if you:
- cut their wages without agreement
- unlawfully demote them
- allow them to be harassed, bullied or discriminated against
- unfairly increase their workload
- change the location of their workplace at short notice
- make them work in dangerous conditions
A constructive dismissal might lead to a claim for wrongful dismissal.
Wrongful dismissal
This is where you break the terms of an employee’s contract in the dismissal process, eg dismissing someone without giving them proper notice.
Wrongful dismissal isn’t the same as unfair dismissal.
If an employee thinks you’ve dismissed them unfairly, constructively or wrongfully, they might take you to an employment tribunal.
Unfair dismissals
Even if you think you’ve dismissed someone fairly, they could still claim unfair dismissal against you if they think that:
- the reason you gave for the dismissal wasn’t the real one
- the reason was unfair
- you acted unreasonably, eg by failing to give them plenty of warning about their dismissal
Automatically unfair reasons for dismissal
Even if you’ve acted reasonably, some reasons for dismissal are classed automatically unfair. These are to do with the following areas:
- pregnancy, including all reasons relating to maternity
- family, including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants
- acting as an employee representative
- acting as a trade union representative
- acting as an occupational pension scheme trustee
- joining or not joining a trade union
- being a part-time or fixed-term employee
- discrimination, including protection against discrimination on the grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation (in Northern Ireland, this also includes political beliefs)
- pay and working hours, including the Working Time Regulations, annual leave and the National Minimum Wage
- whistleblowing
Compulsory retirement on the grounds of age is unlawful unfair dismissal unless you can objectively justify it - but you could be challenged at a tribunal.
Industrial action
It’s automatically unfair to dismiss someone for taking part in official (‘lawful’) industrial action:
- in the 12-week period from the day the industrial action starts
- if the action lasts longer than 12 weeks and you haven’t taken reasonable steps to resolve the dispute
If you ‘lock out’ employees taking industrial action, the days of the lock-out are not included in the calculation of the 12-week protected period.
A lock-out is where you prevent employees from getting to their workplace, eg by locking the doors.
Political beliefs and groups
It is not automatically unfair to dismiss someone because of their political beliefs or political groups they belong to, but a tribunal might find this unfair.
There’s no longer a qualifying period for someone going to an employment tribunal if they’ve been dismissed because of political opinions or affiliation. This applies to anyone dismissed from 25 June 2013.
Penalties for unfair dismissals
If a tribunal finds that an employee has been unfairly dismissed, you might be ordered to:
- reinstate them (give them their job back)
- re-engage them (re-employ them in a different job)
You might also have to pay compensation, which depends on the employee’s:
- age
- gross weekly pay
- length of service
There’s a limit on the amount a tribunal can award for unfair dismissal, apart from in cases relating to:
- health and safety (e.g. where you unfairly dismiss someone for taking action on health and safety grounds)
- whistleblowing
Eligibility to claim unfair dismissal
Employees can only claim unfair dismissal if they’ve worked for a qualifying period - unless they’re claiming for an automatically unfair reason.
Qualifying periods:
Date employment started: Before 6 April 2012
When the employee can claim: After first year of employment
Date employment started: After 6 April 2012
When the employee can claim: After 2 years of employment
Who can’t claim unfair dismissal?
The right to complain to a tribunal about unfair dismissal is not available to:
- self-employed people
- independent contractors
- members of the armed forces
- employees who have reached a settlement with their employer through Acas (Advisory, Conciliation and Arbitration Service) or the Labour Relations Agency (LRA) in Northern Ireland
- employees employed under an illegal contract, eg a barman under the age of 18
- employees covered by a dismissal procedure agreement that’s been legally exempted from the unfair dismissal rules
- employees taking part in unofficial industrial action (unless the dismissal is for an automatically unfair reason)
- police staff (unless the dismissal relates to health and safety or whistleblowing.)
- those working on a fishing vessel and paid by a share in the profits or gross earnings of the vessel
- employees who have reached a settlement with their employer through a ‘compromise agreement’ after taking legal advice.
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