Wrongful and unfair dismissals are two separate entities in law. The wrongful dismissal is defined as where an employee’s contract is terminated by an employer who is in breach of their contractual obligations. Common examples of wrongful dismissal include
- No notice or inadequate notice – unless gross misconduct is the reason for dismissal
- Terminating a fixed-term contract before it’s expiry date
- Making a dismissal in breach of Contractual disciplinary procedures or Contractual redundancy procedure
The Constructive unfair dismissal, is also simply known as constructive dismissal, is a particular type of unfair dismissal. The crucial difference is that in these cases, the employee resigns rather than being sacked. Employees who has worked for 2 years have the right not to be dismissed unfairly. This 2-year hurdle may not be required, if this unfair dismissal is connection with whistleblowing or discrimination or raising important legal rights.
If your employer has done something which qualifies as a serious breach of your contract and causes you to resign from job, then you may be able to make a constructive dismissal compensation claim. For example, you might have a case if you resigned because your employer:
- Demote you for no reason
- removed important benefits set out in your employment contract.
- did not take steps to stop people harassing or bullying you at work
- did not provide you with the support you needed to perform your role
- failed to provide safe working environment
- did not pay you wages
- made unreasonable changes to your working conditions (for example, making you work longer hours)
Employers can dismiss employees for a range of fair reasons, including for redundancy or capability, but the law does not permit employer to do this unfairly, and in law the employees have protection from unfair dismissals. A dismissal is considered unfair under the law if it meets a certain criteria: For example, if you are sacked because of age, sex, disability, marital status, ethnicity, ethnicity or nationality, gender, religion or your belief, sexuality or age, this will be discriminatory and unfair.
A sacking is also unlawful if it is for a reason that is ‘automatically unfair’. For instance, if you are dismissed because you:
- have asked for your legal rights to be met (for example, to receive the minimum wage)
- have reported your employer for wrongdoing (in other words, you are acting as a whistle blower)
- are pregnant or are off work on maternity leave
- are a member of a trade union and you took part in official industrial action, or you were acting as an employee representative
- took action over a health and safety issue
- in relation to certain business transfers.
In addition, your employer can be held liable for unfair dismissal if they don’t follow the relevant disciplinary or dismissal processes or rules when they sack you. The rules are as follows:
- An employer must establish a potentially fair reason for the dismissal: conduct, capability, redundancy, breach of law (eg: driver loses driving licence) or that the dismissal is for ‘some other substantial reason’ (this can be a personality clash, a falling out with a client or even where an employee will not agree to reasonable changes to their contract)
- The employer must act reasonably in treating the reason as sufficient reason to dismiss taking into account all circumstances and whether a fair procedure has been followed
- There must normally be unbiased investigations and the right to an internal hearing with an appeal
- Dismissal must be within the range of reasonable responses
Your employer is required to tell you why they are dismissing you, if you have worked for them for two years or more through an official e-mail or letter.
In our experience, employers are not always entirely truthful about their reasons for sacking workers, so if you think the organisation you work for has not been honest with you about why you have been dismissed, it is important to get legal advice.
If your dismissal is either discriminatory or qualifies as ‘automatically unfair’, you may be entitled to unfair dismissal compensation. Bear in mind that you must be an employee in order to be eligible for this and have a very clear picture with dates and evidence of your claim. You won’t have the right to make a claim if you’re self-employed or an agency worker/independent Contractor. Also, you must make your claim within three months less a day of the date you were dismissed, and you can usually only claim compensation if you have worked for your employer for a minimum of two years.
Our skilled and experienced employment lawyers at Mamoon Solicitors are on hand to advise you if you’re not sure whether you have a case for unfair dismissal.