Legal Advice On Dismissals
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Being dismissed by your employers can be a painful process. However, if you believe that your dismissal was in any way unlawful, seeking advice from a solicitor can benefit you. This guide sets out the differing types of unlawful dismissals and who can claim them.
How Solicitors Can Help With Dismissals
A specialist employment solicitor will have a broad range of experience to cater to your claim. They can assist you if you’re considering resigning, or if you wish to claim at an employment tribunal for being unfairly dismissed.
Instructing a solicitor will ensure that you’re treated fairly throughout your case. They are committed to offering sensible legal advice to help deal with your dismissal. Having this accurate guidance helps you stand up for yourself. A solicitor can help with:
- Constructive dismissal
- Unfair dismissal
- Wrongful dismissal
- Unique advocacy services for Unfair Dismissal
What Is Constructive Dismissal?
Constructive dismissal is one of the most confusing terms in employment law. A constructive dismissal occurs when an employee resigns and is entitled to do so without notice, due to their employer’s conduct. However, to qualify for constructive dismissal, an employee must clearly identify how and when the employer has breached a serious or fundamental term going to the root of the employment contract. This transgression is known as a repudiatory breach.
These fundamental terms of the contract that an employer may breach include cuts in pay or working hours, breaches of the implied terms of trust and confidence and the duty to provide a safe working environment.
What Actions Justify A Constructive Dismissal Claim?
It may be easy for the employee to prove that the employer breached a fundamental contract term relating to cuts in pay or hours. It is much harder to prove claims based on breaches of trust and confidence. Be wary before resigning and claiming constructive dismissal on this basis. Previous, UK courts have found the following contract breaches to be serious enough to entitle the employee to resign and claim constructive dismissal:
- Reduction in pay or hours.
- Changes in employment duties or employment status.
- Changes in a location without a mobility clause in the employment contract.
- Excessive workload.
- Failure to address a grievance.
- Inept handling of disciplinary matters.
- Intolerable working environment
How Can An Employee Claim Constructive Dismissal?
The employee may resign with or without notice, what matters is whether they are entitled to terminate the contract without notice. In reality, not many employees resign with notice when intending to claim constructive dismissal as that will undermine their argument that the working conditions or behaviour of the employer is intolerable.
The courts have also ruled that it is not strictly necessary for the employee to declare the reasons for resigning and they consider themselves constructively dismissed. However, the employee should declare these reasons. If they fail, it may strengthen the employer’s argument that their resignation was not a constructive dismissal.
Employees may resign in response to an actual breach committed by the employer or in response to a fundamental breach that the employer plans to commit (an anticipatory breach). For instance, the employer may inform the employee that they will need to relocate next month. The employee must clearly demonstrate their opposition to the employer’s actions and they should resign promptly. If they continue working, the employer may argue that the employee has overlooked the alleged breach and decided to carry on working under the employment contract.
Who Can Claim Unfair Dismissal?
Employees with 23 months and 3 weeks of continuous service are protected against being unfairly dismissed by the Employment Rights Act 1996 (ERA). These employees have the right to a written statement from their employer setting out the reasons for their dismissal.
If the dismissal is considered ‘automatically unfair;’ employees do not need any length of service to claim unfair dismissal. Any dismissal is connected with discrimination, whistleblowing, trade union membership or asserting a statutory right is ‘automatically unfair.’
Individuals who fall into the legal category of ‘worker’ rather than an employee or are self-employed cannot claim unfair dismissal. If you are unsure of your employment status, seek specialist legal advice. Members of the armed services or, in most cases, those working outside the UK are also excluded from unfair dismissal.
What Is Wrongful Dismissal?
Unfair dismissal and wrongful dismissal are two different things, so it’s good to know the difference between them and where you stand. Wrongful dismissal occurs when the employee is dismissed in breach of the express or implied employment contract terms. Fairness is generally irrelevant and there is no qualifying period for a wrongful dismissal claim.
When Can A Wrongful Dismissal Occur?
Wrongful dismissal can occur in several situations including:
- When the employee has been dismissed (either fairly or unfairly), without being paid their statutory or contractual notice pay.
- When the employee has been summarily dismissed for gross misconduct and therefore without notice pay, but the dismissal was only worthy of ordinary misconduct and so notice should have been given.
- When the employee is entitled to resign and claim constructive dismissal as a result of the employer’s actions.
- When the employer breaches contractual disciplinary or dismissal procedures in the process of dismissing the employee.
The compensation or damages an employee may claim for wrongful dismissal are limited to the notice period and/or the time it would have taken to complete any relevant contractual procedure. If an employer wrongfully dismissed an employee, they are liable to pay damages that reflect the net value of salary and other contractual benefits that the employee would have been entitled to if they had been allowed to work out their notice.
Our Legal Advice
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All advice is correct at time of publication.