Skip to main content

Unfair and Constructive Dismissal Advice for Employees

Sometimes employment relationships turn sour. As employees, you may unfortunately sometimes will find yourself faced with difficult situations at work, such as spending more time at work with colleagues than you do your own family and so personality clashes or differences of opinion can boil over with colleagues that escalate into problems, or questions over your performance. You may find your behaviour or performance being investigated by your employer or face you being dismissed. This may lead to a breakdown in relationships and loss of employment.

In such cases, where you feel you have been unfairly treated, often the only way to enforce your employment rights is through the Employment Tribunal. While procedures such as the ACAS Early Conciliation scheme may help. However, aggrieved employees may find an Employment Tribunal claim remains the only avenue left open to them to receive compensation.

If you find yourself in such a situation, taking early legal advice is essential to ensuring your claim is presented as strongly as possible.

Frequently Asked Questions

The following are some of our most frequently asked questions when it comes to unfair and constructive dismissal claims.

An unfair dismissal is one that does not come under any of the five fair reasons for dismissing an employee. The five potentially fair reasons for termination of employment are as follows:

  • Capability or qualifications – a dismissal on grounds you are incapable of doing the work required (whether through poor performance or ill health) or where you do not have appropriate qualifications to carry out the work required.
  • Conduct – dismissal on grounds of your conduct such as poor performance, ignoring reasonable instructions, unauthorised absences from work, persistent lateness, breach of confidentiality, and so on.
  • Redundancy – dismissal on grounds that your role within the employer is no longer required or your employer’s business closes, and so on.
  • Statutory restriction – dismissal on grounds that for your employer to continue employing you, they would be breaking the law. For example, if you lose your right to work in the UK, your employer can no longer employ you.
  • Some other substantial reason – this can be used in situations where a dismissal is fair but it does not naturally fall into any of the above categories. For example, persistent personality clashes with colleagues may not in themselves be a misconduct issue, but if this affects your employer’s business and shows no sign of improvement it could still be a fair ground for termination of employment.

Your employer must also follow a fair dismissal procedure. This often means they need to follow a staff handbook or, at the very least, the Acas Code of Practice on Disciplinary and Grievance Procedures. Under this, your employer must, at least:

  • Investigate your alleged misconduct or poor performance
  • Inform you of these allegations in writing
  • Hold a disciplinary or capability hearing or meeting with you
  • Inform you of the outcome of that hearing in writing
  • Allow you a right of appeal

Remember: in standard unfair dismissal claims, the burden of proof rests on the employer to show that the dismissal falls into one of the mentioned five categories. However, you must have at least two years’ continuous service to bring a standard unfair dismissal claim.

Constructive dismissal differs from other types of dismissals as it is applies in cases where you have resigned in response to your employer’s conduct towards you rather than your employer actively dismissing you from your job. Unlike standard unfair dismissal claims, the burden of proof falls on you to prove that you were constructively dismissed and not on your employer.

To claim constructive dismissal, you must be able to point to a major or significant breach of your employment contract by your employer and your resignation in response to that breach must not be unreasonably delayed. Acting quickly in resigning after a major or significant breach is critical, as any delay could be interpreted as you waiving your employer’s breach of contract – at which point the argument of constructive dismissal can no longer be raised.

Employers are not infallible and any investigation into your alleged misconduct or poor performance can become flawed for a variety of reasons, whether these are procedural irregularities or substantive failures in considering evidence.

Flaws in an investigation do not automatically mean you will face serious sanction or dismissal. Your employer must first investigate and then decide whether there is sufficient evidence to raise disciplinary proceedings against you. As part of the disciplinary stage, you should be allowed to raise your concerns about any investigation, so the individual handling your disciplinary case can look into them. Also, if you feel the flawed investigation has led to a detrimental disciplinary decision, you will still be able to raise these matters at your appeal hearing.

Most reasonable employers take concerns about investigations seriously and may overturn a disciplinary decision found to be based on a flawed investigation on appeal. If after all these stages you feel your concerns have been ignored, it may be worthwhile seeking legal advice about raising an Employment Tribunal claim.

You should be given notice of the reason you have been called to any formal meeting and what you can expect to be discussed. This is to allow transparency in the disciplinary process and ensure matters are dealt with as openly as possible.

You should be forewarned before any disciplinary meeting of the possible outcome of that meeting, for example a final written warning or dismissal. The rationale behind this is to allow you the opportunity to properly prepare for the meeting and so you cannot be surprised if that sanction is then later applied to you.

In most employee disciplinary situations, you will only have the right to be accompanied by a trade union representative or work colleague to any disciplinary hearing with your employer. Some employers may allow you to be accompanied by someone else; however, you should be aware they have no legal obligation to allow anyone outside these permitted companions.

Since May 2014, to bring any type of unfair dismissal claim you are required to do two main things:

  • Register for Early Conciliation with Acas, and
  • Bring your claim within three months from the date your employment ended, or for a discrimination claim, from the last date that discrimination occurred

When you register for Early Conciliation with Acas, your three-month claim period is automatically ‘paused’ for the duration of the conciliation period, which can last up to one month, with an additional 14 days that can be added on if additional conciliation time is needed.

An Acas Officer contacts both you and your employer to understand your concerns or issues. The purpose of this is to see whether conciliation can lead to a resolution between parties. If so, Acas will record any position reached in a special type of settlement agreement known as a COT3 Agreement.

If conciliation is not fruitful, Acas will issue you with an EC Certificate, which contains unique information necessary for you to bring an Employment Tribunal claim.

Even if you or your employer has no interest in pursuing Acas conciliation, it is always necessary to obtain an EC Certificate before lodging a tribunal claim. Without the EC Certificate, the tribunal does not have jurisdiction to hear your claim. However, you must be alert to the fact your three-month claim period is restarted once the EC Certificate has been issued. Acas will not automatically pass your claim onto the Employment Tribunal so you must still raise it formally with the tribunal using a Form ET1.

In most unfair dismissal claims, the Employment Tribunal must receive your claim within three months less one day from the date of the termination of employment.

For discrimination claims or complaints relating to non-payment of salary or holiday pay, the three-month period begins from the date of the act complained of (which may be continuing, in which case the time for starting proceedings will also continue to run).

The time limit for issuing a tribunal claim can, however, be extended. This can happen because of the necessary notification of Acas before you can issue a claim in the Employment Tribunal. This is explained under ‘I have been dismissed and want to raise a claim. What do I do?’ above.

After Acas has been contacted, the time limit for making a claim to the tribunal is automatically ‘paused’ for up to one calendar month, plus a further 14 days if more time is needed for conciliation. It may be that the certificate is issued much earlier than the initial calendar month Acas allows for conciliation (see below).

The time for issuing the tribunal claim will start to run again once the certificate from Acas is received (stating that early conciliation has ended). You will then have a period of one month or the balance of the original three-month time period (whichever is longest) from this time in which to lodge your claim. If you make contact with Acas just before the end of the original three-month time limit, you will not be time barred while the early conciliation process is happening. You would have the period of the Acas conciliation time, plus an additional one month from the date of the certificate.

These are complicated rules and it is easy to come unstuck. It is always best to obtain specialist employment law advice on this.

How can Thorntons help?

Our experienced Scottish Employment Law team can help you in terms of preparing for any disciplinary proceedings raised against you by your employer, advise you on the prospects of success of any unfair dismissal claim and provide legal representation at an employment tribunal.

Call us on 03330 430 350 to find out more about our services for employees, or complete our online enquiry form and we will contact you.

Depending on your case and circumstances, the first step is usually to arrange an appointment to come into one of our local offices to meet an Employment Law Solicitor to discuss your situation and the way forward. We will outline your options and, depending on your circumstances, we can look at various funding options to help with your case costs.