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What is an Unfair Dismissal? Is it different to Constructive Dismissal?


white man holding cardboard box staring at desk following unfair dismissal

Unfair Dismissal – what is it? Have I been unfairly dismissed? Do I have a strong unfair dismissal claim against my former employer? If I sack them might they bring an unfair dismissal claim against the company?

These are questions I get asked an awful lot by clients and potential clients. It’s important that you know what it means and understand whether you may have a possible claim or whether, as a business, you risk finding yourself on the receiving end of a claim. That call or email from Acas or an ET1 claim form landing in your inbox can be scary, daunting and an isolated place as it is also if you are an individual wondering if you have a claim and how you go about bringing one.

In simple terms, a person may have an unfair dismissal claim if they have been dismissed (often called sacked, terminated, laid off and various other terms) by their employer and that employer did not have a) a potentially fair reason to dismiss and/or b) it is found that the employer in all of the circumstances acted unreasonably in treating that reason as sufficient reason for the dismissal. One example of this could be that they failed to follow a fair, reasonable proper process (or any process) before making the decision to dismiss.

Lots of these terms have very technical meanings and so it is essential that you seek specialist employment law advice if you believe you may have a claim. Firstly, not all people will be eligible to bring this type of claim and secondly, it can often be complicated to work out whether what has happened to you was actually a dismissal in law. This is before we even come on to think about whether you are still in time to bring a claim as strict deadlines apply in the Employment Tribunal.

The situation is complicated somewhat by the fact that the two words, ‘unfair’ and ‘dismissal’ are used in everyday language and lots of lay people (ie the person on the street) would think they could hazard a decent guess at what it actually means. However, we all know that law tends not to be that simple or straightforward and never is that truer than when we are talking about Unfair Dismissal.

Unfair Dismissal is a statutory concept which means that there is a piece of legislation called the Employment Rights Act 1996 which sets out the law on unfair dismissal. So, you’d think that it should be simple enough? You read the relevant bit of legislation and it all becomes clear? Unfortunately not.

Once again, the way the law operates means that it isn’t quite as simple as that. Whilst the law itself is set out in that Act, in order to apply the law and to advise as to what it actually means currently then we also have to look at how it has been developed and implemented over the years. We do that by looking at so-called ‘case law’ ie how unfair dismissal cases in the Employment Tribunal, Employment Appeal Tribunal and the higher courts have been decided over the years.

A slightly different type of claim is a constructive dismissal claim although the two are often mistaken. Do you need advice about a constructive dismissal claim? Have you been able to wade through the legal minefield to work out what one is? Constructive dismissal is a type of unfair dismissal claim however the ‘dismissal’ in these cases is due to a repudiatory breach by the employer (or a series of breaches). It may be a breach of either an express or an implied term of the relationship between the parties, following which the employee resigns. Again it’s complicated area of law. If you are after constructive dismissal solicitors then contact Hibberts LLP for advice about your situation as again this is a technical area of law and specialist legal advice is essential. Hibberts are excellently placed to provide that, in a personal, professional and practical manner.

If you are wanting straightforward, practical but specialist employment law advice regarding bringing or defending an unfair dismissal claim or a constructive dismissal claim then please get in touch with Camille Renaudon, Head of Employment Law at Hibberts Solicitors and her team on 01270 215117 or www.hibberts.com or Camille.Renaudon@hibberts.com