A dismissal could be unfair if the employer does not have a good reason for dismissing the employee, or if the Employer does not follow the company’s formal disciplinary or dismissal process.
Situations when a dismissal is likely to be unfair include if an employee:
- asked for flexible working
- refused to give up their working time rights – eg to take rest breaks
- resigned and gave the correct notice period
- joined a trade union
- took part in legal industrial action that lasted 12 weeks or less
- needed time off for jury service
- applied for maternity, paternity or adoption leave
- were on any maternity, paternity or adoption leave they were entitled to
- tried to enforce your right to receive Working Tax Credits
- exposed wrongdoing in the workplace (whistle blowing)
- were forced to retire (known as ‘compulsory retirement’)*
*Compulsory retirement is not allowed unless the employer can objectively justify it, but an employee can challenge it at an Employment Tribunal.
Constructive dismissal is when an employee is forced to leave their job against their will because of the employer’s conduct.
The reasons for the employee leaving their job must be serious, for example, they:
- don’t get paid or are suddenly demoted for no reason
- are forced to accept unreasonable changes to how they work – eg told they have to work night shifts when their contract is only for day work
- are subjected to other employees harassing or bullying them with no intervention from the Employer etc
The employer’s breach of contract may be one serious incident or a series of incidents that are serious when taken together.
An Employee should try and sort any issues out by speaking to the employer to solve the dispute.
If an Employee does have a case for constructive dismissal, they should leave their job immediately as the Employer may argue that, by staying, the Employee accepted the conduct or treatment.