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Employment

Unfair/Constructive Dismissal

If you are an employee with 2+ years’ service and you believe you have been unfairly dismissed, you have 3 months (in most cases) from the date of dismissal to pursue an unfair dismissal claim against your former employer at an Employment Tribunal.

Therefore, it is essential that you seek expert employment law advice as soon as you are able to ensure that you are fully aware of the procedure and the strength of your claim from the outset.

For a dismissal to be fair, an employer must be able to prove that the reason for dismissal fell into one of the following categories as set out in the Employment Rights Act 1996:

  • Conduct e.g. dishonesty, consistent absence, gross misconduct etc.
  • Capability – the employee lacked sufficient ability or qualification to undertake the work
  • Redundancy i.e. there was a genuine reason to make the employee redundant
  • Statutory restriction – continuing the individual’s employment would contravene a statute e.g. the individual is required to drive for their role but have been banned from driving
  • Some other substantial reason (SOSR)

An employer also needs to prove that the dismissal was reasonable, which will be assessed in the Employment Tribunal, and that they complied with the ACAS Code of Practice.

A dismissal is automatically unfair if the employee is dismissed for reasons such as making a protected disclosure (aka whistleblowing) or asserting a statutory employment right (e.g. maternity or paternity).

Constructive dismissal arises when an employer fundamentally breaches the employment contract, forcing an employee to resign immediately e.g. failing to pay an employee the correct wages or reducing wages without first consulting the employee, or demoting an employee without their agreement.

There are many grey areas around constructive dismissal as it can be hard to prove, so it is imperative that you understand all of your rights and responsibilities before attempting to bring a constructive dismissal claim to an Employment Tribunal.

Our expert employment team, led by Nick Smith, will explain the situation to you in a straight forward, no-nonsense manner to ensure that you understand the process from beginning to end.

To contact one of the team call 0191 281 6151 today.

For a responsive, commercially aware, friendly service contact:

Nick Smith

Partner, Head of Employment

T: 0191 212 7739nsmith@mincoffs.co.uk

Supportive and easy to talk to.
Chambers Guide to the UK Legal Profession 2018

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