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unfair dismissal

Unfair Dismissal

Employment may be terminated for a variety of reasons, for example, as a result of disciplinary action, redundancy or long term illness. Whether the dismissal is unfair will depend on the individual circumstances and whether a correct and fair procedure has been followed.

The distinction between unfair dismissal and constructive dismissal can sometimes be misleading. Unfair dismissal claims arise where the employee is dismissed by the employer. Constructive unfair dismissal claims arise where the employee is compelled to resign for a serious reason, for example, because there has been a fundamental breach of contract such as a significant reduction in pay with no consultation or ongoing bullying problems. Claims of this nature can be difficult and the employee should seek legal advice before considering a resignation.

It is good practice for both the employer and employee to attempt to resolve problems as informally and as early as possible, particularly in the interests of preserving the working relationship.

Where the employee believes that a dismissal is unfair, proceedings may be issued at an employment tribunal for unfair dismissal. There are strict time limits in which to do this and for claims of this nature, it will be three months. Further claims might be relevant and will also need to be stated on the claim form. There are also qualifying periods of employment to be able to issue a claim, for example, the employee must usually have two years’ continuous service for an unfair dismissal claim, whereas no such time limit exists for a discrimination claim.

Prior to issuing proceedings, it is now a mandatory requirement to utilise the ACAS conciliatory service. Where the employment dispute cannot be resolved, ACAS will provide a number to be stated on the employment tribunal claim form. A new fee regime has now been introduced which will also involve a fee being paid at the time the claim is issued.

It is possible for a claim to be settled during the tribunal process, however, it is often more advantageous to explore the possibility as early as possible. If terms are successfully negotiated, the employee may be invited to enter into a Settlement Agreement (formerly Compromise Agreement). It is a requirement that the employee seeks independent legal advice and the employer will usually make a contribution towards the legal fees incurred in connection with it.

This information is intended to provide a general and generic overview only and is not intended to represent comprehensive legal advice, procedures and policies may also vary. This information should not be relied upon without first obtaining detailed legal advice.