Unfair and constructive dismissal
Unfair dismissal - your employer doesn’t have a good reason for dismissing you
- dismissal is likely to be unfair include if you:
- asked for flexible working
- refused to give up your working time rights - eg to take rest breaks
- resigned and gave the correct notice period
- joined a trade union
- took part in legal industrial action that lasted 12 weeks or less
- needed time off for jury service
- applied for maternity, paternity and adoption leave
- were on any maternity, paternity and adoption leave you’re entitled to
- tried to enforce your right to receive Working Tax Credits
- exposed wrongdoing in the workplace (whistleblowing)
- were forced to retire (known as ‘compulsory retirement’)
Constructive dismissal - when you’re forced to leave your job against your will because of your employer’s conduct.
- The reasons you leave your job must be serious, for example, they:
- don’t pay you or suddenly demote you for no reason
- force you to accept unreasonable changes to how you work - eg tell you to work night shifts when your contract is only for day work
- let other employees harass or bully you
What to do if you're dismissed
- you can get help from a third party to solve the issue by mediation, conciliation and arbitration.
- you can speak to your union representative
- you can normally go to an employment tribunal.
- Qualifying period to claim unfair dismissal - you must have worked for your employer for a minimum period before you qualify for the right to claim unfair dismissal at a tribunal:
- if you start work on or after 6 April 2012 - the qualifying period is normally 2 years
- before 6 April 2012 - the qualifying period is normally one year
- In unfair dismissal claims you must make the claim to a tribunal within 3 months of being dismissed.
- Dismissal is when your employer ends your employment - they don’t always have to give you notice.
- Your employer must show they have:
- a valid reason that they can justify
- be consistent - eg not dismiss you for doing something that they let other employees do
- have investigated the situation fully before dismissing you - eg if a complaint was made about you
- If you’re a part-time or fixed-term worker, you can’t be treated less favourably than a full-time or permanent employee
- Notice period:
- You must be given at least the notice stated in your contract or the statutory minimum notice period, whichever is longer.
- There are some situations where you can be dismissed immediately - eg for violence.
- Written statement:
- You have the right to ask for a written statement from your employer if you are:
- an employee and have completed one year’s service
- employed under a fixed-term contract which has ended and not been renewed
- Your employer must supply the statement within 14 days of you asking for it
Reasons you can be dismissed
- Not being able to do your job properly
- if you haven’t been able to keep up with important changes to your job
- if you can’t get along with your colleagues
- employer should give you a chance to improve - eg by training you
- employer should warn you that your work isn’t satisfactory
- Illness - you can be dismissed if you have a persistent or long-term illness that makes it impossible for you to do your job.
- Redundancy is a form of dismissal and is fair in most cases.
- Summary dismissal - you can be dismissed for ‘gross misconduct’ without your employer going through the normal disciplinary procedures.
- if you are violent towards a colleague, customer or property
- your emploer should always investigate the case
- A ‘statutory restriction’ - if you’re a driver in a lorry firm and you lose your driving licence.
- It’s impossible to carry on employing you - if a factory burns down and it’s no longer possible to employ anyone.
- A ‘substantial reason’ - you unreasonably refuse to accept a company reorganisation that changes your employment terms