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Unfair and Constructive Dismissal

Unfair Dismissal

If you have been dismissed you may be able to bring a claim in the Employment Tribunal to compensate you for the financial losses you suffer as a result. There are five potentially fair reasons that you can be dismissed for:

- Capability
- Misconduct
- Redundancy
- Illegality
- Some other substantial reason

If your dismissal is for a reason other than those listed above or your employer fails to follow a fair process then you may have a claim for unfair dismissal.

The right to bring a claim, however, is limited to those employees who have been employed for 12 months or more, or 2 years for employees who started their employment after 6th April 2012. There are some exceptions to this requirement such as if you if you have made a protected disclosure (‘whistleblowing’), have participated in trade union activities, or if your dismissal is connected to a protected characteristic and is therefore discriminatory.

Constructive Dismissal

Constructive dismissal is where your employer behaves in such a way that it amounts to a breach of your contract of employment, and you feel that you have no choice but to resign as a result.

The breach can be a breach of one of the express terms of your contract – i.e. if your employer doesn’t pay your wages (also a possible unlawful deduction of wages), but it can also include a breach of an implied term of your contract, such as the duty of trust and confidence.

If your employer treats you in such a way that makes you feel that you cannot continue working for your employer and you resign as a result of this, you may be able to claim constructive dismissal.

What do I have to do?

In order to pursue a claim you need to register your claim with ACAS within 3 months less one day from the date your employment ended. This will then trigger a conciliation period of up to 1 month to try and resolve matters. If the matter is not resolved then ACAS will provide you with a certificate which you will need to submit your ET1 claim form to the Employment Tribunal, usually within 1 month of receiving the certificate. These time limits are strictly applied by the Employment Tribunal and so it is important to seek advice quickly. If you appeal your dismissal, this does not extend the time limit.

Is there a fee involved?

Yes. Since July 2013 fees have been introduced in the Employment Tribunal. The fee to issue a claim for unfair dismissal is £250. There is also a hearing fee, payable a month before the final hearing, of £950 for unfair dismissal claims. If you are in receipt of certain benefits or your income is below a certain level then you may be eligible for a partial or full exemption from these fees.

What compensation or other remedy could I get?

If you are successful with a claim for unfair dismissal then generally you should be able to claim a Basic Award which is based upon your age, length of service and gross weekly salary (subject to a cap of £464 for dismissals prior to 6th April 2015 and £475 for dismissals from 6th April 2015).

You may also be entitled to a Compensatory Award to recover your loss of earnings, reasonable expenses incurred in looking for other jobs, loss of benefits and pension, and future loss of earnings. Compensation is limited to the lesser of £78,335 or a year’s salary.

You may also be reinstated into your old job or re-engaged into a different job within your employer’s business.

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