The distinction between a constructive unfair dismissal and unfair dismissal claim can sometimes be difficult to comprehend.
What is an unfair dismissal claim?
An unfair dismissal claim can arise when an employer has failed to terminate the employment relationship correctly. It is important that a fair and reasonable process is adopted.
There are potential reasons to dismiss an employee fairly, for example, where the conduct of an employee is unacceptable, where the employee can no longer undertake their work, redundancy, a legal reason or some other substantial reason. The latter can be interpreted to cover a wide variety of situations.
Should an employer have followed a warning process before dismissing?
It is important that an employer has a comprehensive disciplinary procedure which outlines what is to be expected should it be necessary to undertake disciplinary measures. It is not always necessary for an employer to follow a warning process, however, it will depend on the seriousness of the allegation(s). Where there is a serious allegation, for example, theft, employment might ultimately be terminated on the grounds of gross misconduct and without notice.
What is a constructive unfair dismissal claim?
An unfair dismissal claim may arise in circumstances where an employer terminates the employment relationship. A constructive unfair dismissal claim may arise where an employee resigns as a result of a fundamental breach of contract on the part of the employer.
Constructive unfair dismissal claims might arise as a result of repetitive problems or a single significant event, the latter, for example, enforcing a material change of contract without consultation.
An employee might attempt to resolve the problem by first raising an informal and/or formal grievance, however, where this is ineffective, a resignation might be considered. It is vitally important that legal advice is obtained prior to resigning as constructive unfair dismissal claims can sometimes prove difficult to establish.
How would a claim be presented?
Where an aggrieved employee wishes to pursue further action, a claim may be issued at an employment tribunal. There is a mandatory requirement to formally appoint ACAS prior to doing so and there are strict time limits both in terms of appointing ACAS and issuing a claim.
Can an unfair dismissal or constructive unfair dismissal claim be avoided?
An employer may invite an employee to enter into a Settlement Agreement, which is a confidential document that will prevent an employee from pursuing their legal rights. Although an employer might be confident of defending any such claim, it might prefer to avoid the extent of time and financial costs associated with defending the action and the risk of losing the claim.
There is a legal requirement that an employee obtains legal advice in connection with the Settlement Agreement and for an employer to contribute towards the costs of so doing.
If you would like to discuss any of the issues in this blog, please contact us.
