Constructive and Unfair Dismissal Claims

Since the start of the recession we have seen growth in the number of redundancies and changes to terms and conditions of employment such as reduction in hours, pay cuts, sabbaticals etc. 

The employment lawyers at Kingsley Napley help businesses by advising them how to manage their business through these changes. We also help senior employees increase their bargaining power in such situations and provide advice and support at all stages of the process.

Constructive dismissal arises when an employer has acted in such a way as to destroy or seriously damage the relationship of trust and confidence with the employee.  Examples can include bullying, harassment, unreasonable exercise of discretion in relation to bonuses, and forcing an individual to accept unreasonable changes to contract terms.

Unfair dismissal arises when an organisation does not have a fair reason for dismissing a member of staff, for instance if there were no issues with job performance or an organisation does not follow the correct procedure for dismissal.

For a dismissal to be fair the employer must show that:

• The reason for the dismissal was a potentially fair one (see below); and
• The employer acted fairly and reasonably in all of the circumstances in dismissing for that reason. This usually includes showing that a fair procedure was followed.

Fair reasons

Where an employee qualifies for unfair dismissal the potentially fair reasons for his or her dismissal are reasons related to:

• The individual's capability or qualifications
• The conduct of the employee
• The retirement of the employee
• The fact that the employee was redundant
• Illegality: the fact that continuing to employ the individual would result in the employer breaching a statutory duty or restriction (e.g. a lorry driver who has lost his licence)
• "Some other substantial reason" of a kind which justifies the dismissal of a person doing the employee's job.

Automatically unfair reasons

There are over twenty "automatically" unfair grounds for dismissal.  Some of the more common grounds are when the principal reason for the dismissal of the employee is:

• Connected with the employee’s pregnancy or maternity leave
• Connected with the employee's membership (or non-membership) of a trade union
• Where an employee refuses to work in an environment he or she reasonably considers will be dangerous to health and safety
• Because he or she has disclosed potential wrongdoing by the employer to a third party (so-called "whistleblowing").

Fair procedures

The Acas Code on Disciplinary and Grievance procedures is the crucial guide to fair procedure in disciplinary and capability dismissals.  The procedures set out in the Code are not, technically, binding but it is taken into account by Tribunals when determining whether a "fair procedure" has been followed.  So a failure to follow the Code on the part of an employer could have serious financial repercussions: an "uplift" in compensation of 25%.

Early involvement of solicitors helps to avoid mistakes and helps employers achieve cost savings.  We work with you to provide additional support to your in-house resources and help you follow the correct legal processes in a way that works for your organisation.

Getting employment law advice at an early stage means that senior employees can have input into a situation before their employer has made its decision.  If you have been unfairly dismissed we can help you obtain legal redress.

Due to our substantial experience of all aspects of constructive dismissal and unfair dismissal claims our team of specialist employment law solicitors at Kingsley Napley can support you through the process.  We help senior employees negotiate their exit on their own terms and support senior employees in bringing employment tribunal claims.

Our specialist team of employment law solicitors also helps employers to respond to grievances, complaints and potential claims early on to prevent the situation escalating.  If matters cannot be resolved in the early stages we provide guidance and support all the way through to the Employment Tribunal hearing so that your team can keep focused on your business.  Our employment team works with employers in reviewing their procedures for best practice and to provide employee training to help avoid similar future events.

Our lawyers have substantial experience of guiding companies through the complexity of business restructures and dismissal claims.  We help companies to take practical steps to comply with their legal obligations whilst retaining their commercial focus and flexibility.  We have experience of working across a wide number of business sectors including financial services and the legal profession.

For more information please contact Richard Fox at rfox@kingsleynapley.co.uk.