Skip to content

Constructive Unfair and Wrongful Dismissal under UK law

Hardeep Kular

 At HKKLAW, we specialise in handling cases of constructive and unfair dismissal.

Our expert legal advice and representation aim to provide clear, practical support to employees facing these challenges. We offer expert guidance and robust representation to ensure your rights are vigorously defended and you receive the justice and compensation you rightfully deserve.

For employers, we offer counsel on lawful treatment and dismissal procedures and strategies to mitigate the risk of claims, ensuring compliance with employment law.

HKKLAW is committed to upholding the rights of employees and supporting employers in maintaining lawful employment practices. Whether you are an employee considering a claim or an employer navigating these complex areas of employment law, we are here to provide expert guidance and support.

 Understanding ConstructiveDismissal

Constructive unfair dismissal (CUD) arises when an employee feels compelled to resign due to significant breaches of their employment contract by the employer.

This could result from a serious single incident or a cumulative series of events that render the employee’s working conditions intolerable. Actions such as unilaterally changing terms of employment, failure to pay wages, workplace bullying or harassment, or unreasonable demotion without cause can contribute to constructive dismissal.

It is vital for employees to demonstrate that the breach was significant enough to justify resignation or made their position untenable.

Key Elements of Constructive Unfair Dismissal:

Employer’s Breach of Contract: Proving a serious breach of contract by the employer is essential.

Involuntary Resignation: The resignation should be a direct response to the breach.

Link between Breach & Resignation:

There must be a clear connection between the employer’s breach and the employee’s decision to resign.

 Constructive unfair dismissal claims need to be brought to an Employment Tribunal within three months less one day from the date of resignation. If you are contemplating resignation due to constructive unfair dismissal, seeking legal advice is crucial.

HKKLAW can provide comprehensive advice to employees facing constructive unfair dismissal, guiding you through the process of legally challenging a resignation forced by an employer’s breach of contract or poor treatment, ensuring your rights are fully protected and seeking appropriate remedies for your situation.

Understanding Unfair Dismissal:

Unfair Dismissal (UD) is a significant concept in UK employment law, protecting employees from being unjustly dismissed from their jobs. To claim Unfair Dismissal, an employee must typically have been employed for a qualifying period of at least two years; however, there are notable exceptions where no qualifying period is required, such as dismissals related to discrimination, whistleblowing, or asserting a statutory right.

Fair reasons for dismissal include conduct, capability or performance, redundancy, statutory illegality or breach of a statutory restriction and some other substantial reason or SOSR of a kind that justifies dismissal. However, even if an employer cites one of these reasons, the dismissal can still be considered unfair if the decision to dismiss was not reasonable in the circumstances or the correct process was not followed.

Automatically Unfair Dismissals are those dismissed for reasons that are inherently unjust by law, regardless of the employer’s process or the employee’s length of service. These include dismissals related to pregnancy, family (including parental leave, paternity leave, adoption leave, and childcare leave), acting as a trade union representative, participating in trade union activities, exercising statutory rights and a number of other protected grounds.

In assessing the fairness of a dismissal, tribunals will consider whether the employer acted reasonably in treating the cited reason as sufficient for dismissal and whether the process was fair and proper. This includes looking at whether the employee was given warnings (where applicable), if the employer conducted a fair investigation, and if the employee was given an opportunity to respond to any allegations.

Time Limits:

Claims should be made to an employment tribunal within a strict time limit from the date of dismissal. In unfair dismissal claims you must make the claim to a tribunal within 3 months of being dismissed.

HKKLAW offers crucial support to employees who have been dismissed unfairly. Our expertise allows us to thoroughly assess the circumstances surrounding your dismissal, ensuring that your rights are robustly protected, providing strategic advice on the best course of action, whether it be negotiating a settlement or pursuing a claim at an Employment Tribunal. Our aim is to secure the justice and compensation you deserve, leveraging our extensive knowledge and experience to challenge unfair dismissals effectively.

For employers, navigating the intricacies of Unfair Dismissal claims can be daunting. Our role is to offer preventive advice to ensure that dismissal processes are fair, lawful and correctly documented, minimising the risk of legal challenges. In cases where claims arise, we provide comprehensive support in formulating a strong defence, advising on the legal framework and representing your interests at tribunals. Our expertise not only helps in defending against UD claims but also in implementing best practices to foster a fair and compliant workplace environment.

Understanding Wrongful Dismissal

Wrongful dismissal under UK employment law refers to a situation where an employer terminates an employee’s contract without giving the correct notice or without a justifiable reason that breaches the terms of the contract. Unlike Unfair Dismissal, which primarily focuses on the fairness of the dismissal process and the reasons behind it, Wrongful Dismissal is a contractual claim that can be brought by an employee regardless of their length of service.

Key Aspects of Wrongful Dismissal:

  • Notice Period: The employer must adhere to the notice period outlined in the employment contract. If no notice is given or the notice is insufficient, it may constitute wrongful dismissal.
  • Contractual Terms: Breach of any other contractual term by the employer that leads to termination can also be grounds for a wrongful dismissal claim. This includes, for example, dismissal without following the procedure specified in the contract.
  • Damages: Compensation for wrongful dismissal is usually limited to the earnings the employee would have received during the proper notice period, including benefits such as pension contributions and health insurance. This is distinct from Unfair Dismissal claims, where compensation can include additional elements like a basic award and compensatory award.

 Exceptions and Considerations:

  • Constructive Dismissal: This occurs when an employee resigns due to the employer’s conduct, which essentially breaches the employment contract to such an extent that the employee feels they cannot continue working. This can be considered a form of Wrongful Dismissal if it breaches contractual terms.
  • Fixed-term Contracts: For employees on fixed-term contracts, wrongful dismissal can occur if the contract is terminated before the end date without a justifiable reason outlined in the contract or without following the agreed procedure.In terms of protection against dismissal for fixed-term employees, it is important to differentiate between actual dismissal and the natural expiration of a fixed-term contract. Dismissal occurs when the fixed-term contract is terminated prior to its agreed end date. Such a dismissal could be deemed unlawful if it’s primarily because the employee is on a fixed-term contract. On the other hand, the mere act of not renewing a fixed-term contract upon its completion does not, in itself, amount to a dismissal. Likewise, choosing not to renew a contract does not automatically represent unfair treatment or a detriment to the employee.

 Legal Framework and Remedies:

Employees seeking to make a claim for wrongful dismissal can do so in an employment tribunal or a civil court, depending on the amount of compensation being claimed. Employment Tribunal can award compensation of up to £25000. The time limit for bringing a claim to an Employment Tribunal is usually three months less one day from the date of dismissal, whereas claims in the civil courts must be made within six years.

Understanding the nuances of wrongful dismissal is crucial for both employers and employees to ensure that employment contracts are honoured and that any terminations are conducted lawfully and fairly.