Posts Tagged ‘constructive dismissal’

Dismissal – An Employers Guide

Saturday, July 24th, 2010

Employers must be cautious when taking the decision to dismiss an employee as such action may leave the employer open to wrongful or unfair dismissal claims.

There must be a fair reason for the dismissal. The dismissal can only be for a fair reason if:
– it relates to the employee’s conduct;
– it relates to the employee’s capability or qualifications;
– it is because of redundancy;
-it is because the employee has reached the normal retirement age;
– continuing to employ the employee would be illegal, e.g. because the employee is a van driver and he has just received a driving ban; or
-it is for some other substantial reason. This is understood to be a fair reason that does not fall under the other categories.

A dismissal for any other reason would be unfair.

Generally, employees must have been employed for one year before they can bring a claim for unfair dismissal. However, certain types of dismissals are deemed automatically unfair and employees are protected as soon as they start work. These include dismissals for reasons connected to pregnancy, parental leave, requests for flexible working and whistleblowing.

An employer may still be held liable even if there is a fair reason for the dismissal if it does not follow a fair procedure when dismissing the employee. The employer should consult the ACAS Code of Practice on Disciplinary and Grievance Procedures.

The employer must also show that it has acted reasonably in treating one of the fair reasons as a ground for the employee’s dismissal. For example, if the employee is found to be incapable of carrying out the job, the employer should give the employee timeto improve and may even be required to offer the employee appropriate training.

The employer should also ensure that it gives the employee his or her full notice period or pays the employee a payment in lieu of their notice period. An employer’s failure to give adequate notice or payment in lieu before dismissal is likely to result in a wrongful dismissal claim by the employee.


Dismissal – Unfair & Constructive

Saturday, July 24th, 2010

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.