Constructive dismissal

An employment tribunal will accept an employer sacking a worker if it can be shown that the worker has and will continue to fail to fulfil the employment contract. But employment law advice is not that simple. Ending a contract of an employee with two year’s service can break the Employment Right Act 1996 and depending on facts revealed, an employment tribunal may judge the sacking as unfair dismissal or wrongful dismissal.

Employment law advice tells an employer that you need to have justifiable reasons and to have your employee go through a fair procedure in order for the sacking to be lawful and to avoid unfair dismissal.

Employment lawyers would point out that a sacking satisfies the correct procedure if the employer:

  • – used sacking as the last resort
  • – carried out an investigation as soon as reasonable to determine the facts
  • – uses a fair and consistent procedure when dismissing employees
  • – set out the rules and disciplinary procedures in writing
  • – ensure that managers and employees understand the disciplinary rules, and
  • – sought to resolve any problems informally.

If it is made clear to an employment tribunal  that you as an employer have not treated the employee you want to sack in a comparable way that you have or would have treated other employees, then the sacking is likely to be judged as unfair dismissal. It should be added that if you want to sack an employee, it makes no difference if the worker is a full-time or part-time.

There are some clear reasons for dismissal that would be recognised by an employment tribunal. An employer can immediately sack an employee for gross misconduct. This is particularly so for an employee’s use of violence in the workplace. 

Other justifiable reasons include if an employee is shown not to have the skills or qualifications to do the job, or has seriously breached reasonable policies around conduct, then dismissal is potentially lawful. There are other valid reasons.

Yet, some reasons are automatically unfair. An employer cannot sack a worker because he or she is using employment rights to obtain, for instance, time off for maternity or paternity.

An employment tribunal  makes a judgment about a dismissal by examining whether a fair procedure was followed.

Constructive dismissal can also constitute unfair dismissal. If an employer seriously breaches the employment contract in order to force an employee to leave, then this amounts to constructive dismissal. In such a case, an employee should be able to show that he or she did not accept the breach and genuinely felt they were forced to leave.

Examples of a serious breach leading to constructive dismissal include: not paying the employee properly, demoting the employee or bullying.