Unfair/Constructive Dismissal; Wrongful Dismissal

 In all circumstances concerning employment claims there are specific deadlines for complaints and claims to be brought, otherwise they will not be accepted, meaning the chance to claim damages might be lost.  Sometimes this is as little as three months from the event of the event complained of (e.g. the date of dismissal, date of deduction from wages), as discussed in our Employment Tribunal/Court claims page.

Unfair/Constructive Dismissal

Generally employees are now only entitled to bring a claim for unfair dismissal or constructive dismissal (where the employee claims to have resigned due to the employer’s actions), if the employee has been employed for two years or more, whether that be on a full or part-time basis. If an employee is dismissed for any of the following reasons however, their dismissal is automatically unfair and the fact that they have not reached two years continuous service will not prevent a claim from proceeding.

This means a claim for unfair or constructive dismissal can be brought from the first day of employment if related to:

• pregnancy;
• sexual, racial or disability discrimination;
• equal pay;
• Trade Union membership or duties;
• health and safety issues;
• claiming a legal right such as the right to minimum wage, paid holidays, a statement of terms and conditions of employment or itemised payment (wage slip).

Constructive and unfair dismissal claims entitle the employee to claim a basic award, calculated the same way as a redundancy payment, and a compensation award of up to one years’ salary or a sum equivalent to the current statutory cap, whichever is the lower.

Wrongful Dismissal

Wrongful dismissal is where dismissal take place without the correct notice period being given to an employee. This applies whether the period of notice was to be worked for the employee or they were to be paid in lieu of the notice period, but were not required to attend work and perform their duties. The loss which can be claimed by the employee is a sum equal to the sum they would have been paid during such part of the notice period for which they did not work and receive their contractual salary, or was not paid in lieu, by the employer.

Reducing risks

If you are an employee, reduce the risk of losing the right to bring a claim due to being out of time, by acting today to enforce your legal rights.

If you are an employer, reduce the risk of an employee claiming successfully against you and being potentially ordered to pay substantial sums. Contact our team for commercial advice on how best to deal with the situation presented.