17th July 2023 | Mark Fellows | Employment, tribunal, disciplinary

Employment lawyers will tell you that not a day goes by without hearing somebody assert that they have been unfairly dismissed, constructively dismissed or wrongfully dismissed. To confuse matters further, an employee can also be summarily dismissed. Dare I say it, we even refer to dismissals that are discriminatory…

However, in many cases, those concepts are used interchangeably as if they all represent the same claim, yet they are all very distinct and separate claims that have to be considered against the applicable legal principles. We’ve shared our legal insights into each type of dismissal and your legal rights as an employee.

Different Types of Employment Dismissal

What is a Summary Dismissal?

A summary dismissal is a dismissal of an employee without any notice (and without paying them any notice either). Thus, it is quite common in cases of gross misconduct for the employee to be summarily dismissed. 

Employee Rights if Dismissed Without Notice

If their employer has failed to provide the required notice period, an employee might have the right to claim wrongful dismissal as their employer may have breached their contract. If the dismissal was due to gross misconduct however, the employer may be justified in ending employment immediately without notice. 

Employees who feel they were unfairly dismissed should seek legal advice, as they may be entitled to compensation. Get in touch with our expert employment law solicitors today to seek expert legal advice tailored to your personal situation.

What is a Wrongful Dismissal?

Wrongful dismissal is a breach of contract claim, namely that the employer has dismissed the employee in breach of the terms of the employment contract.

If the employment contract provides that the employee is entitled to 3 months’ notice on termination, but the employer only gives 2 months’ notice, then this will give rise to a wrongful dismissal claim. It is a contractual claim, and the employee will point to the fact that they have suffered loss – 1 month’s loss of salary and benefits.

Often this claim is pursued when the employer terminates without any notice (see summary dismissal above), but the employee contends that the employer did not have grounds to terminate without notice. This claim is not concerned with the fairness of the procedure followed; it is simply an analysis of whether the employer has breached the employment contract.

This claim can be pursued in the Employment Tribunal but a cap of £25,000 applies on the value of that claim. Thus, if the wrongful dismissal claim is worth more than £25,000, it may need to be pursued in the High Court.

Employee Rights if Wrongfully Dismissed

If an employee is wrongfully dismissed, they have the right to seek compensation for any lost wages and benefits during the notice period. As this is a claim based on contract law rather than employment rights, employees with less than two years of service may also be able to claim. Legal action can be taken through an employment tribunal or civil court, so we would recommend seeking legal advice to help determine the best course of action for your individual situation. You can get in contact with Sherrards’ expert solicitors today.

What is an Unfair Dismissal

The Employment Tribunal considers 3 key issues when considering if a case fits an unfair dismissal claim. 

  1. Did the employer have a fair reason to dismiss the employee? There are 5 recognised potentially fair reasons, including: 
  • Capability 
  • Conduct
  • Redundancy
  • Breach of statutory duty or restriction 
  • Other substantial reason

2. The Tribunal must be satisfied that the employer followed a fair procedure in reaching the decision to dismiss

3. The employer acted reasonably in treating that reason as sufficient to warrant dismissal

To bring a standard unfair dismissal claim, the employee needs 2 years continuous service with their employer. No such service requirement exists for wrongful dismissal claims.

If an employee has more than 2 years of continuous service and is dismissed by their employer (irrespective of whether notice was given), they can claim that they have been unfairly dismissed.

The Employment Tribunal will consider three key issues. Firstly, did the employer have a potentially fair reason to dismiss the employee. There are currently 5 recognised potentially fair reasons – capability, conduct, redundancy, breach of a statutory duty or restriction, and some other substantial reason. The dismissal must be for one of those reasons. Secondly, the Tribunal has to be satisfied that the employer followed a fair procedure in reaching the decision to dismiss and thirdly, that the employer acted reasonably in treating that reason as sufficient to warrant dismissal.

Thus, this claim is not about notice; it is about the fairness of the dismissal and will involve an analysis of the reason for dismissal, the procedure followed and whether the decision to dismiss was reasonable. 

Employee Rights if Unfairly Dismissed

If an employee is unfairly dismissed, they have the right to challenge their dismissal through an employment tribunal, provided they have at least 2 years of continuous service. There are some exceptions to this, including discrimination cases and whistleblowing.

If an employee has more than 2 years of continuous service and is dismissed by their employer, regardless of whether notice was given, they can claim unfair dismissal. If the tribunal finds the dismissal unfair, the employee may be entitled to reinstatement, re-engagement, or compensation for lost earnings. Secure expert legal advice today to assess the strength of your unfair dismissal claim.

What is Constructive Dismissal?

The fundamental principle of a constructive claim is that the employee has resigned, as opposed to the employer expressly dismissing them. Note that like an unfair dismissal claim, the employee needs 2 years of continuous service with their employer to pursue a constructive dismissal claim.

In many cases, the employee will resign without notice, but equally, claims can be pursued even if the employee works their notice following their resignation. The employee typically argues that they are resigning either in response to a repudiatory breach of their employment contract by the employer (an express or implied term) or that the employer has engaged in cumulative conduct over a period, resulting in a ‘final straw’ incident, leaving them no choice but to resign.

There is much case law on examples of successful constructive dismissal claims, which can include reductions to, or non-payment of, salary or where the employer has breached trust and confidence.

Employee Rights if Constructively Dismissed

If an employee is constructively dismissed, they have the right to leave and claim unfair dismissal if their employer has fundamentally breached their contract. This could include employers significantly changing working conditions, failing to address workplace harassment, or reducing pay without agreement.

Legal Actions & Next Steps

Employment dismissal is rarely as simple or clear cut as our explanations above. For example, It’s possible for an employee to be summarily dismissed (for say gross misconduct), who then alleges that they were unfairly dismissed (because, for instance, they do not believe the employer followed a fair process in dismissing them) and also alleges that they were wrongfully dismissed (on the basis that the employer did not have grounds to terminate without notice)…

  • Seek legal advice to ensure you have a case: Making sure you have a strong claim before starting the legal process can help prevent unnecessary costs and time on weak cases. It can also help you maximise any compensation you receive if you win your case.
  • Gather supporting evidence for your claim: Having clear documentation, such as emails, contracts, witness statements, and other relevant proof can help to strengthen your case and increase the chances of a successful claim.
  • Be aware of time limits on making a claim: Employment tribunal claims usually need to be filed within 3 months and one day less from the date of dismissal. This means it’s very important to act quickly to avoid missing key deadlines. 

 

Contact an Employment Dismissal Legal Expert Today

Our expert employment and HR lawyers are here to support you with matters like unfair dismissal, constructive dismissal, redundancy, settlement agreements, workplace discrimination, and disciplinary or grievance concerns. We’ll provide clear, practical advice tailored to your personal situation, ensuring you understand your rights and feel empowered to take the next steps with confidence.

 

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