Dismissal - details of constructive dismissal and the procedures for fair dismissal

What is a dismissal?
Dismissal from the workplace occurs when your fixed-term contract of employment is not renewed; you are dismissed from your job with or without notice; or you are forced to resign due to your employer's actions.

Constructive dismissal

Constructive dismissal is when an employee is forced to resign from his job without wanting to, but has no other option, due to the fact that his employer has made his work life a misery and staying in the job impossible.

This forced resignation is then treated as a type of unfair dismissal in front of an employment tribunal. In the case of constructive dismissal a breach of contract by the employer will have to have been made.

Examples of constructive dismissal could include the following:
  • Changing the location of the job at short notice
  • Not paying wages due or not paying on time
  • Making changes to an employee's job content or terms of employment
  • Allowing or carrying out any type of harassment or victimisation towards the employee
  • Placing an employee in a difficult, dangerous or stressful situation without any support
  • Falsely accusing an employee of misconduct or a criminal offence
  • Cutting an employee's wages without agreement
  • Unduly demoting an employee
  • Giving an employee an excessive amount of extra work
Constructive dismissal would generally occur after one serious incident or several smaller incidents that occur over a period of time resulting in the decision to resign over these events. The resignation should occur within a short time space of the employer's breach of contract.

Note that in a tribunal, not all cases of constructive dismissal will be classed or proved as unfair dismissals, especially if they involve matters of business management.

Fair dismissal

Dismissals can be fair or unfair. If you are dismissed fairly, it is generally due to unacceptable conditions on the employee's part and provided that your employer acted correctly during the dismissal procedure, you will not always win if you take the case to an employment tribunal.

Fair dismissals generally fall under one of the following categories:
  • Conduct: This is one of the most common reasons for dismissal, although before sacking an employee due to poor conduct, verbal and written warnings should have been given first. Under this category an employee could be sacked for things like constantly missing work or turning up late; ability to do the work but choosing not to; alcohol or drug abuse; or criminal offences such as fraud, fighting or theft.
  • Capability: You are not capable of carrying out your job to the required standard. This could be due to long-term illness, frequent bouts of illness or inability to get your head round technological changes such as new computer systems etc.
  • Redundancy: As long as you have been selected for redundancy in a fair way, then this is a case of fair dismissal.
  • Statutory restriction: This is when an employee cannot continue to do their job because if they did, they would be breaking the law. An example would be if you lost your driving licence and driving was the main part of your job. So long as there was no other position within the company, this would also be a fair dismissal.
  • Some other substantial reason: This is when because of an irresolvable impossible situation there is no other option than dismissal that could be seen to work. Examples could include going to prison or the total inability to get on with a certain colleague in the office.

How much notice?

An employee should be given the same period of notice as set out in his employment contract terms. However, an employee may be dismissed immediately without notice for gross misconduct such as theft or violence. In some cases an employer will give a reasonable period of notice if you do not qualify for the minimum period of notice, which will depend on whether you get paid weekly or monthly.

Legally the minimum notice is 1 week if you have worked for more than one month but less than two years; 2 weeks if you have worked for two years; 3 weeks for working for three years and so on up until the maximum statutory working notice period, which is 12 weeks.

Procedure that your employer should follow in the dismissal process

Before dismissing an employee there are certain steps that an employer should carry out before actually issuing the dismissal notice. The steps that an employer should follow are those set out in the ACAS Code of Practice on disciplinary and grievance procedures, although he is not legally bound to do so.

However, if a case goes to an employment tribunal and the employer has not carried out similar steps to those in the ACAS Code of Practice, he may be forced to pay more compensation if found to be an unfair dismissal.

If an employer has decided upon dismissal as the only course of action, first of all, he should write a letter to the employee detailing and explaining the problem that he has.

With this letter should be an invitation to meet to discuss the contents and the problem. Legally, the employee is allowed to bring another work colleague with them to the meeting or a trade union representative.

Once the meeting is over and the employer has had time to think, he should then contact the employee in writing again, this time informing him of his decision.

If the employee does not agree with the employer's decision, he is within his rights to appeal and this is advisable to do. The appeal will involve a second meeting to discuss the appeal and the problem again, and the employer will inform the employee again in writing, of his final decision.

If there is still disaccord between employer and employee, the employee at this stage can make a claim to an employment tribunal.

While this process is taking place, it is a good idea to make notes of all meetings and phone conversations plus to copy all correspondence between the two parties.

It is also possible before the final stage to bring in a specialist from ACAS (Advisory, Conciliation and Arbitrary Service) who are trained in resolving these types of problems in the workplace.

If you feel you have been unfairly dismissed, see our guide to unfair dismissal for guidance.

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