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What Factors Determine an Unfair Dismissal

Dismissal from a job can be a complex matter and doesn’t always follow set guidelines, so it’s important both employers and employees know what fair and unfair dismissal is and how they are differentiated. There are different types of dismissals so we’ll explain a few of these here.

The difference between constructive and unfair dismissal

Constructive dismissal is when you’re forced to leave your job against your will because of your employer’s conduct. For example, if they do not pay you or demote you for no reason, force you to accept unreasonable changes or allow harassment or bullying in the workplace.

Unfair dismissal is when your employer terminates your contract without having a good reason or doesn’t follow the company’s formal disciplinary or dismissal procedures. Both unfair and constructive dismissals may have grounds for legal action.

Fair dismissal

A fair dismissal requires the employer to have a valid reason to dismiss the employee and may fall into one of these categories:

  • Dismissal because of an employee’s conduct such as theft, fraud or negligence
  • Dismissal because of an employee’s capability or qualification for the role such as performance concerns or long-term sickness absence
  • Redundancy
  • Dismissal due to a statutory restriction such as a driver losing their driving licence
  • Other reasons may be considered such as an employee receiving a long-term prison sentence

Unfair dismissal

If a dismissal doesn’t follow a fair disciplinary or dismissal process or the reason for dismissal doesn’t fall under one of the reasons listed above, then it may be considered unfair dismissal. Some of these situations may include:

  • Asking for flexible working
  • Refusing to give up your working time rights
  • Resigned with the correct notice period
  • Joined a trade union
  • Took part in legal industry action
  • Had to take time off for jury service
  • Applied for maternity, paternity or adoption leave
  • Exposed wrongdoing
  • Being forced to retire

Typically, an employee would need at least two years’ service to have a claim for unfair dismissal, except in some cases when the dismissal is automatically unfair. This relates to cases where an employee is making a protected disclosure, refusing to work because of health and safety concerns or is trying to assert a statutory employment right. Employers have a duty to ensure they dismiss staff fairly so it’s wise to seek professional advice to guide you through the process.

Swan Craig offers professional employment law advice for both businesses and individuals, whether you are an employee dealing with unfair dismissal or a business looking for advice to fairly dismiss employees, we can help. We’re an experienced team of employment law solicitors based in Bristol that provides practical advice regarding an employment dispute. Get in touch with our friendly team today.

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