What counts as constructive or unfair dismissal? What is it? If you are employed, your employer could decide to dismiss you. Then, this could be justified, or it could not be. Then, you could take your case to an employment tribunal. Your Benefits will tell you all you need to know about being dismissed.
What is dismissal?
Your employer may have chosen to put an end to your employment. Additionally, they might not have given you any notice. Then, this is likely wrongful dismissal.
However, when dismissing you, your employer needs to indicate a couple of things. Mainly, that there are appropriate reasons for which they did so. Additionally, that they acted in an appropriate manner.
You may be a fixed-term or part-time worker. However, your type of employment does not allow your employer to treat you any worst than full time employees.
There are two additional types of dismissal, constructive dismissal and unfair dismissal. Indeed, in some situations, you could even be able to take legal action against your dismissal. If you engaged in gross misconduct (even through email address) or a breach of contract, then it may be instructive.
What is constructive dismissal?
The name of this type of dismissal can be a bit confusing. Indeed, this is not when you were dismissed for a constructive reason. In fact, it is when your employer’s behaviour forced you to leave your job. Note that you should talk with your employer first to resolve the situation.
In other words, constructive dismissal is when you have to leave your job in order to avoid certain (lack of) behaviours from your employer. Indeed, you can get a constructive dismissal if your employer:
- Does nothing to stop your co-workers from discriminating against, bullying or harassing you;
- Demotes you suddenly, or does not pay you, for seemingly no precise or good reason;
- Coerces you into changing your work in an unreasonable manner, like forcing you to work at night when that is not stated on your employment contract.
If you believe that you have a good reason for constructive dismissal, you should leave your workplace and job right away. Indeed, you may choose to stay. However, if you do that, your employer may argue that you accepted their wrong treatment of you by staying.
Note that your employer may have breached your employment contract. Then, what they did is likely to be illegal. Indeed, a serious incident like this (or a series of serious incidents) may warrant constructive dismissal.
What is unfair dismissal?
The name says it all: unfair dismissal is when your employer dismisses you for bad reason, or does not follow the company’s appropriate procedures.
More specifically, the first reason is that your employer was not justified in dismissing you. Indeed, this means that the reason for their dismissal was founded on shaky grounds.
Second, they may not have followed the appropriate procedures. This is the case if they did not follow the appropriate dismissal or disciplinary process outlined by the company. Indeed, this could also mean that they did not follow the statutory minimum dismissal procedure if you live in Northern Ireland.
There could be a number of reasons for which your employer dismissed you, in which case this is an unfair dismissal. Indeed, they are as follows, you were dismissed because you:
- Tried getting adoption, paternity or maternity leave;
- Were coerced into retiring, also known as ‘compulsory retirement‘;
- Made a request for flexible working;
- Were on entitled to and on paternity, adoption or maternity leave;
- Were entitled to Working Tax Credit and tried receiving it;
- Had to do jury services and took time off in order to do so;
- Decided to join a trade union;
- Engaged in whistleblowing and put to light things that were going wrong in your workplace;
- Did not want to surrender your working time rights, like if you refused to give up your rest breaks;
- Gave the appropriate notice period, then resigned;
- Were part of a legal industrial action that went on for a length of time equal to or less than 12 weeks.
How long can you be on sick leave before dismissal?
You could be dismissed because of being on sick leave. However, it depends on a number of factors. Indeed, first, you may have a long-term illness or disability. If that is the case, dismissing you could be illegal, as it would amount to discrimination because of your disability.
Additionally, you may have worked for your employer for 2 years or more, and be an employee. Then, this means that dismissing you could be considered unfair dismissal.
Why could I be dismissed?
You could be dismissed for various reasons. First, if you are not doing your job how you are supposed to. Indeed, you may not have been able to get along with your co-worker. Additionally, you may not have been able to adapt to changes in the workplace.
Note that your employer should give you a chance before dismissing you. Indeed, they should also follow the appropriate procedure. As such, it’s recommended that they talk to you about your unsatisfactory work before simply dismissing you.
You may also have an illness. Furthermore, the illness could be long-term or persistent. Lastly, it could keep you from doing your job. Then, your employer could dismiss you because of it.
If you have an illness, your employer should try to help you first. Indeed, the reason for your sickness could be the job in itself. Furthermore, your employer could help you recover, like by giving you time. They should not dismiss you without doing anything else first.
You could also be disabled. In fact, if you have a long-term illness, it counts as such. Then, your employer legally has to offer you help to make sure that you can do your job. They may not dismiss you simply because of a disability. Indeed, doing so is likely to be illegal, and considered discrimination.
Lastly, you could be affected by redundancy. Indeed, this is a type of dismissal. In most cases, it is also appropriate. However, the reason for which you were selected for redundancy may not have been fair. Then, you were unfairly dismissed.
What are other types or reasons?
Dismissal may be a ‘statutory restriction’. Indeed, this is the case if your employer would be breaking the law if they continued to employ you. In fact, this is the case if you are a driver and lose your licence.
Furthermore, there could be a substantial reason for your dismissal. Indeed, this is the case if you go to prison. Additionally, changes to your workplace could change the terms of your employment. If you refuse such changes, this could mean that your dismissal would be justified.
What is the notice period for dismissal?
You may or may not be given notice when you are dismissed. Indeed, this depends on a couple of things. First, on the reason for which you were dismissed. Second, on what is in your contract.
If you have a notice period in your contract, this will be what is used. Otherwise, the statutory minimum notice period will be used. Indeed, it only depends on whichever of the two is longer.
Will my dismissal be put in writing?
You could ask for your dismissal to be put in writing. Indeed, this is the case if you are an employee worked for the company for 2 years (only 1 if you began prior to 6 April 2012). Furthermore, it must be given to you no later than 14 days after you made the request.
Additionally, you could be dismissed while on Statutory Maternity Leave. In this case, then you need to be provided a written statement by your employer. This is regardless if you worked with them for a long time, or asked for a written notice.
Dismissal: what can I do?
You may have been dismissed, whether fairly or unfairly. Additionally, you could be threatened to be dismissed. In this case, you can use a third party. Indeed, they will be able to do arbitration, conciliation, and mediation.
Although it is recommended to first talk to your employer, if you were dismissed anyways, you will typically be able to take your case to an employment tribunal. This is an industrial tribunal if you reside in Northern Ireland.
Will I need to pay tax on my termination payment?
You may be dismissed. In this case, you could receive a termination payment. In fact, in it, you could get any wages not paid to you, bonuses, company benefits, and holiday pay.
Note that your holiday pay is calculated in different ways depending on the type of work that you do. More specifically, you could get the following:
|Holiday pay in the UK in 2022 for every type of work
|Type of work
|How your weekly pay is counted
|No fixed hours (this includes casual work, like zero-hours contracts)
|Your average pay over 52 weeks (do not count weeks where you were not paid)
|Shift work which has fixed hours (this includes both part-time and full-time)
|The worker's average weekly fixed hours in the 52 weeks prior, and at the average hourly rate
|Fixed pay and hours (this includes both part-time and full-time)
|The typical pay that the worker receives weekly
If you receive a termination payment, you may or many not have to pay taxes on it. Indeed, you could have to pay National Insurance. More specifically, whether you have to pay taxes on it or not depends on what is included in your payment.
If you are dismissed, you may be able to benefit from additional… well… benefits. Then, Your Benefits can help! First, we provide a number of articles on benefits, and helpful concepts and rules to know about.
However, additionally, Your Benefits provides a free simulator, which can show you all the benefits you could be missing out on. Indeed, there are a number of financial aid that you could be entitled to, but do not claim. Then, this free service could be all you need to increase all the money that you are able to receive!
Claiming unfair dismissal: what is the qualifying period?
You could be able to claim unfair dismissal. Indeed, you must have a specific employment status and have worked for your employer for a certain amount of time. Indeed, you must be considered employee. Additionally, what needs to be true depends on when you started to work for your employer:
- Prior to 6 April 2012: your qualifying period will typically be of 1 year;
- Either on 6 April 2012 or later: your qualifying period will typically be of 2 years;
- You reside in Northern Ireland: the qualifying period will typically be of 1 year.
Note that the reason for your dismissal may have been your political affiliations or opinions. If this is the case, you do not have a qualifying period. Indeed, you can take the case to an employment tribunal straight away.