Unfair, Wrongful or Constructive Dismissal

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    Unfair, Wrongful or Constructive Dismissal

    There are two recognised situations in which you may pursue a claim against your employer regarding your loss of employment: unfair (or ‘wrongful’) dismissal, and constructive dismissal. Both are considered equally viable complaints and an experienced personal injury lawyer can likely build a compelling case for compensation in either instance.

    Your employer has a duty of care to ensure that you can go about your work without suffering injury, and if you end up in constant pain as a result of their negligence, it’s only right that you should be able to pursue a claim for compensation.

    Have you been forced to leave your job because of your employer’s conduct?

    If constructive claims dismissal solicitors can show your employer has acted in a way that makes it impossible for you to continue your position at work then your claim may succeed.

    Constructive dismissal stands for ‘constructive unfair dismissal – a type of unfair dismissal.

    There are two other particular circumstances, in which, you may pursue a claim against your employer for early termination and loss of employment, and may be contrary to their contractual obligation:

    • Unfair dismissal

      When an employee is dismissed (‘fired’ or ‘sacked’) from their employment without good reason.

      Also refers to the failure of your employer to follow their own formal disciplinary and/or dismissal procedures during the dismissal process.

    • Wrongful dismissal

      Unlike unfair dismissal, a breach of contract law by the employer can include:

      Breach of a notice term, whether expressed or an implied term.

      Termination of a fixed-term contract before it has expired.

    If you feel you have good grounds to pursue unfair dismissal claims compensation or claim for wrongful dismissal our partners have trained legal advisers who will answer your questions.

    They will quickly confirm if your potentially fair reasons for claiming unfair dismissal or making a wrongful dismissal claim could succeed.

    They will then put you in touch with an expert ‘no win, no fee’ unfair dismissal claims solicitor who will build the strongest possible case on your behalf.

    What is Constructive Dismissal?

    A ‘constructive dismissal’ takes place when an employer has committed a serious breach of contract with an employee, also termed as a “repudiatory breach”.

    The employee then feels forced to leave because they can no longer cope with their employer’s behaviour towards them.

    The employee is entitled to consider themself as having been ‘dismissed‘, and resigns in response to their employer’s conduct.

    Resigning in response to employer’s behaviour – what you should know

    If you resign in the belief you have good reasons(s) for constructive dismissal but later find this may not be the case – you may significantly prejudice your position. It could reduce your chance of success in pursuing compensation.

    It is always recommended you first seek professional advice from one of our trained legal advisers who be able will answer your questions. Call free now on 0800 234 6438

    Typical reasons for constructive dismissal claims

    You are likely to have more than one reason why you feel your employer’s conduct towards you as their employee has become intolerable.

    It could amount to a breach of their contractual obligations, your contract of employment, and your contractual right. Whether it’s over specific working conditions or more serious gross misconduct.

    Typical reasons, upon which, constructive dismissal claims solicitors can start to build their case, include:

    Working Conditions

    Employer fails to:

    • Provide a safe working environment.
    • Adequately deal with/investigate your grievance.

    Your employer may be in breach of the employee’s contract by changing your working conditions, such as job description, hours, or location, without your agreement.

    Pay Related Conditions

    Employer fails to:

    • Pay you according to the terms of your employment contract.
    • Pay a contractually due bonus.

    Your employer may have simply cut your pay.

    Employment Status
    • Employer demotes, downgrades or lowers your position / work status – for no apparent reason.
    • Employer takes disciplinary action against you – without justification.
    Employer Behaviour

    Claims of employer misconduct may refer to circumstances, such as:

    • Seeking every opportunity to humiliate, belittle or undermine your authority in front of work colleagues.
    • Permitting (or turning a ‘blind eye’) to harassment, bullying, or similar humiliating and degrading behaviour against you by one or more of your work colleagues.
    • Assigning you such an excessive workload you are unable to cope or fall ill from the stress of trying to complete the work.
    • Forcing you to work in breach of health and safety laws.
    • Setting work targets or deadlines that are unrealistic or likely impossible for you to achieve.
    • Failing to make reasonable adjustments for a disability.

    Minimum employment period for constructive dismissal

    To make a claim for constructive unfair dismissal compensation at an employment tribunal, you must have worked a statutory minimum of TWO YEARS continuous period for your employer.

    Exceptions to the 2-year rule

    However, there are some circumstances, which will not require a minimum two-year period of continuous working for your employer, including:

    • Breach of contract or other changes made without your agreement.
    • Discrimination based upon sex, gender, colour, race, ethnicity, age, disability, pregnancy or other forms.
    • Victimisation and /or blamed for revealing company malpractice.

    Constructive dismissal claims compensation

    The total amount of compensation you could receive if your claim for constructive dismissal is successful will depend upon the exact circumstances of your case. 

    Two separate forms of compensation are usually awarded for constructive dismissal by an employment tribunal:

    • Basic Award
    • Compensatory Award
    Basic Award

    Calculated for each year of your employment according to:

    Your Age

    • Under 22: Half a week’s pay.
    • 22 – 40: One weeks’ pay
    • 41 plus: One and half week’s pay

    Your Weekly Gross Pay (at the effective date of employment termination).

    • Maximum limit – currently £544 (from 6th April 2021).

    Number of Years you Worked with your Employer

    • Up to a maximum of 20 years

    The maximum payment you can receive from the Basic Award is currently £16,320.

    Compensatory Award

    After the Basic Award has been decided, the often, more larger element – the Compensatory Award is set out.

    Under The Employment Rights Act, compensation is to be awarded based upon the amount of income loss as a result of:

    • Your resignation.
    • Your employer’s actions.
    • Determining it is ‘fair and just’ to make the Award.

    Losses claimed under a Compensatory Award are:

    • Loss of wages – includes  contractual benefits, non- contractual benefits, bonus or commission.
    • Loss of future wages – a cut-off point for compensation based upon employment status at date of hearing and new salary amount if started a new job.
    • Loss of statutory rights (minimum 2 years continuous employment before qualifying for unfair dismissal protection).
    • Loss of pension.

    Total Loss Assessment for Constructive Dismissal Claim

    The maximum amount that you can be awarded as compensation for constructive dismissal (as of 6 April 2021) is currently capped at £89, 493 – or 52 weeks gross salary, whichever is the lower amount.

    Amounts already received from your employer, such as payment in lieu of notice or enhanced redundancy payments will be taken into account when assessing your total loss. Earnings from alternative employment during the notice period are also taken into account for a constructive dismissal claim.

    Compensation for Unfair Dismissal Claim

    An unfair dismissal claim may be brought to an employment tribunal by unfair dismissal claims solicitors if you have been sacked in a way that breaches employment law.

    A claim for unfair dismissal is a statutory right under the Employment Rights Act 1996. This means an employee has a statutory claim, and is legally entitled to the right to claim unfair dismissal regardless of what their employment contract states.

    To be eligible to claim unfair dismissal – you must have worked a continuous 2-year qualifying period of service for the right not to be subject to an unfair dismissal.

    Under the Employment Rights Act 1996, your employer must show that his principal reason was “potentially fair” and fall under one of FIVE categories:

    1. Capability – you are found to be incapable or unqualified of doing your job.

    2. Conduct – your behaviour is found to be unacceptable for reasons such as poor attendance, deception, dishonesty, failure to follow or ignoring instructions (which could amount to gross misconduct).

    3. Redundancy – given for genuine business reasons.

    4. Illegality  – examples include, not having the specific skills and/or qualifications to do your job legally, or your job requires you to drive a vehicle such as a company car but you’re banned due to speeding or another road traffic offence.

    5. Some Other Substantial Reason (“SOSR”) – examples could include:

    – Asking for flexible working

    – Refusal to give up your working time rights (such as rest breaks)

    – Resigned and gave the correct notice period

    – Needed time off for jury service

    – Applied or were taking maternity, paternity or adoption leave

    – Exposed wrongdoing in the workplace – Forced to take early retirement

    If you were given a potentially fair reason for your dismissal but the proper procedure for dismissal was not followed, you still have grounds for unfair dismissal claims compensation.

    Wrongful Dismissal Claims

    What is a wrongful dismissal claim?

    Claims for a wrongful dismissal are different from unfair dismissal claims. A claim for wrongful dismissal is essentially a breach of contract claim against your employer.

    Whereas, a claim for unfair dismissal is your statutory right – or legal right – a wrongful dismissal claim is a contractual right – as set out in your contract of employment.

    Another key difference is – a claim for wrongful dismissal does not require you to have worked with your employer for a set period of continuous service to allow you to pursue a wrongful dismissal claim.

    Damage for Wrongful Dismissals with Pay in Lieu of Notice

    It is common practice for an employer not to require an employee to work out his notice period. Instead, payment is made in lieu of notice. A payment in lieu of notice, instead of working notice periods, is usually regarded as ‘damages for wrongful dismissal’ – unless otherwise stated in the contractual procedures.

    Time Limit for Claiming Wrongful Dismissal

    Wrongful dismissal claims must be brought before an employment tribunal within THREE MONTHS (minus one day) from the date of an employee’s summary dismissal.

    However, wrongful dismissal employees who fail to bring their claim to the employment tribunal within the three month time limit can still pursue a civil action. An extended limitation period of SIX MONTHS applies for bringing a civil claim for wrongful dismissal.

    Compensation for Wrongful Dismissal Claims

    An employer found to have wrongfully dismissed their employee will be liable to pay damages. Compensation awarded is intended to put an employee back to the position they would have been in – had the employment contract been terminated, in accordance with the contractual procedure.

    Compensation will reflect the net value of wages and any other contractual benefits, to which, the employee would have been entitled had they been allowed to work out their contractual notice period.

    There is a statutory cap of £25, 000, which is the maximum amount of compensation that can be awarded in a claim for wrongful dismissal at an employment tribunal. If the compensation sought for breach of contract exceeds this mount, your wrongful dismissal claim will have to be brought to court.

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