Dismissal – Unfair & Constructive

In order to bring a claim for unfair dismissal, an employee must have been dismissed.

There will be a dismissal if:

The employer terminates the employment, either summarily (that is, with immediate effect) or on notice.

The employee resigns (with or without notice) and can establish that they were constructively dismissed. This requires the employee to show that:

There was a fundamental breach of contract by the employer.

They resigned because of that breach.

They did not delay before resigning (as a delay can mean that the employee has affirmed the contract and lost their right to claim constructive dismissal).

A constructive dismissal is not necessarily an unfair dismissal. The tribunal will look at the employer’s conduct and decide whether it acted fairly.

The employer does not renew a fixed-term contract on the expiry of the fixed term.

The employee retires.

The employee will not have been dismissed if their employment terminates:

Following the employee’s resignation unless of course there is a constructive dismissal. There will be a dismissal if the employee has given notice and the employer dismisses them during the notice period.

By agreement of the parties. This is unlikely to include voluntary redundancies provided there is a true redundancy situation but may include early retirement.

By operation of law, for example:

Because the contract has been frustrated by an unforeseeable event that makes performance impossible or unlawful or radically changes the contract. In practice, it is difficult to establish that a contract has been frustrated.

Because of a supervening event. This could include the death of the employee or an individual employer, the dissolution or major reconstruction of the employing partnership and certain insolvency situations.

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