Avoiding unfair, constructive and wrongful dismissals
On what grounds can an employee claim unfair dismissal?
The dismissal of an employee is unfair if it is for any of the following reasons:
In general, to be able to claim unfair dismissal an employee must be:
An employee who feels he has been unfairly dismissed can make an application to an employment tribunal. The employee has three months from the date of dismissal to bring the claim.
If the tribunal finds the dismissal unfair, it will normally order that:
An employee can bring a claim for both unfair and wrongful dismissal. However, any money received under one claim will cancel out the same amount received under the other.
For further information see the Department of Trade and Industry web site. Also, an ACAS Code of Practice (PDF download, 327KB) gives businesses advice on dealing with disciplinary issues, for example dealing with absence and poor performance. Tribunals take the Code into account when considering cases of possible unfair dismissal.
New provisions to the Employment Act 2002 coming into force in October 2004 mean that employers will need to have minimum disciplinary and grievance procedures in place. However, unfair dismissals will be judged in such a way that merely procedural shortcomings will be disregarded so long as a dismissal is otherwise fair
What is constructive dismissal?
A possible case of constructive dismissal happens when an employee regards himself as being dismissed because of his employer's conduct, although he has not been formally dismissed.
This situation can arise when:
It is up to an employee to prove that he has been constructively dismissed. He must show that:
An employee is not required to notify an employer of his reason for leaving.
For further information read the DTI's information on unfair dismissal.
What is wrongful dismissal?
Wrongful dismissal happens when the manner in which an employee is dismissed is improper. As such, the reasons given for a dismissal are irrelevant in possible cases of wrongful dismissal.
Wrongful dismissal is based upon an employee's contract and breaches of that contract can lead to the right to sue for wrongful dismissal. So, for example, employees are wrongly dismissed if they have not been given a proper period of notice or if an employer has not properly followed a disciplinary procedure set out in an employee's contract.
Wrongful dismissal constitutes breach of contract, so any damages will be assessed on the basis of what the employee would have received had the employer not breached the contract. Damages can also be claimed for substantial inconvenience and discomfort arising from wrongful dismissal.
What legal procedures for dealing with dismissal, discipline and grievances must a small business have in place?
Since 1 October 2004, all employers - regardless of size - must have minimum legal procedures for dealing with dismissal, disciplinary action and grievances in the workplace, and they must tell their employees about them.
The law, the Employment Act 2002 (Dispute Resolution) Regulations, means all employers (and employees) must follow a minimum 3-step process when dealing with most dismissals, disciplinary actions and grievances.
Employers should tell their staff about the law through company literature, emails, posters and so on. A business must also set out the 3-step process in one of the following for each employee: the initial offer of employment letter, the written statement of employment particulars, or the contract of employment.
An exception to the 3-step process occurs in cases of gross misconduct: a modified 2-step dismissal procedure applies involving only a dismissal in writing and the employee’s right to appeal.
There are penalties if an employer fails to follow the correct procedures: a dismissal becomes unfair, giving the employee the right to claim ‘unfair dismissal’, a minimum of four weeks’ pay is awarded to the employee, and any compensation is increased.
Visit the DTI's site on resolving disputes for additional information and help on the law. Acas also have a helpline - call 08457 474747.