Constructive Unfair Dismissal v Unfair Dismissal

I come across many employers and employees who are not aware that constructive and actual unfair dismissal is very different.

Once an employee reaches 2 years of service with the same employer, they are afforded certain rights, including the right not to be unfairly or constructively unfairly dismissed. Fundamentally, the two are very different, however, the phrases are often confused. It is important that you understand the different terms in order to ensure that you fully understand your rights and obligations whether you are an employee or an employer.

What is unfair dismissal?

Unfair dismissal is where the employer communicates to the employee that they are terminating their relationship. Where the employee is employed for at least 2 years or more they are protected and are able to bring a claim for unfair dismissal against their employer. There are several potentially fair reasons for dismissal, such as:

1. A reason relating to the employee’s capability or qualification for performing the job they were employed to do.
2. A reason relating to the conduct of the employee.
3. The employee is made redundant after following a fair selection procedure.
4. The employee could not continue to work in the position without contravening a law
5. For some other substantial reason

It is important that if you are an employer you seek advice before you dismiss an employee to ensure that you protect your business from potentially unfair dismissal claims. If you are an employee who considers that they may have been unfairly dismissed, due to the reasons given or process followed, it is important that you seek legal advice as soon as possible to ensure you do not miss the deadline to lodge a claim.

Constructive dismissal

Constructive dismissal occurs where an employee who has 2 years of service and feels that they have no other option but to resign from their position due to the conduct of their employer or the treatment they are subjected to. The reason an employee resigns must be linked to a fundamental or repudiatory breach of their contract of employment which they can identify, examples include:

1. Your employer does not pay you or demotes you for no reason;
2. Your employer forces you to accept unreasonable changes to how you work;
3. Your employer is aware that you are being bullied or harassed and does not do anything to stop the conduct.

The employee cannot base their resignation on mere unreasonable action of their employer.

Constructive dismissal can be based on a very serious independent event or on a series of incidences which are significantly serious when considered together. Employees must note that the longer the time between the conduct or treatment and their resignation, the greater the chance the employer may be able to argue they accepted the conduct or treatment by remaining in their position so long before contesting the change. However, were a possiblea claim for constructive dismissal should not be an employee’s first response. They should try and address any issues they are experiencing with their employer first through raising a grievance.

It is advisable that where an employee feels that action of their employer has left them no option but to resign, that legal advice is sought to ensure they commit no act which may weaken the merits of their claim.

If you would like to speak to an expert employment lawyer about unfair dismissal or constructive dismissal, whether you are the employer or employee please contact us via email at contact@davenportsolicitors.com or via telephone on 020 7903 6888.

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