Unfair and Constructive Dismissal Advice for Employees

There are five potentially fair reasons for dismissing an employee:

• Capability or qualifications – a dismissal on grounds you are incapable of doing the work required (whether through poor performance or ill health) or where you do not have appropriate qualifications to carry out the work required.
• Conduct – dismissal on grounds of your conduct such as poor performance, ignoring reasonable instructions, unauthorised absences from work, persistent lateness, breach of confidentiality, and so on.
• Redundancy – dismissal on grounds that your role within the employer is no longer required or your employer’s business closes, and so on.
• Statutory restriction – dismissal on grounds that for your employer to continue employing you, they would be breaking the law, for example. if you lose your right to work in the UK, your employer can no longer employ you.
• Some other substantial reason – this is a fairly limited fair ground for dismissal which can be used in situations where a dismissal is fair but it does not naturally fall into any of the above categories. It is quite often used where there has been a significant breakdown in trust and confidence between an employer and employee but which may not necessarily relate to misconduct or poor performance on the employee’s part. For example, persistent personality clashes with colleagues may not in themselves be a misconduct issue, but if this affects your employer’s business and shows no sign of improvement it could still be a fair ground for dismissal.

In addition to these substantive grounds for dismissal, your employer must also follow a fair dismissal procedure. This often means they need to follow a staff handbook or, at the very least, the Acas Code of Practice on Disciplinary and Grievance Procedures. The Acas Code is a statutory guide your employer must follow for all disciplinary hearings and dismissals, excluding dismissals for redundancy, ill health or non-renewal of a fixed term contract. Under this, your employer must, at least:

• Investigate your alleged misconduct or poor performance
• Inform you of these allegations in writing
• Hold a disciplinary or capability hearing or meeting with you
• Inform you of the outcome of that hearing in writing
• Allow you a right of appeal

Remember: in standard unfair dismissal claims, the burden of proof rests on the employer to show that the dismissal falls into one of the mentioned five categories. However, you must have at least two years’ continuous service to bring a standard unfair dismissal claim.

Constructive dismissal differs from other types of dismissals as it is affected not by your employer actively dismissing you from your job, but by your own resignation in response to your employer’s conduct towards you. Unlike standard unfair dismissal claims, the burden of proof falls on you to prove that you were constructively dismissed and not on your employer.

To claim constructive dismissal, you must be able to point to a major or significant breach of your employment contract by your employer and your resignation in response to that breach must not be unreasonably delayed. Acting quickly in resigning after a major or significant breach is critical, as any delay could be interpreted as you waiving your employer’s breach of contract – at which point the argument of constructive dismissal can no longer be raised.

Employers are not infallible and any investigation into your alleged misconduct or poor performance can become flawed for a variety of reasons, whether these are procedural irregularities or substantive failures in considering evidence.

Flaws in an investigation do not automatically mean you will face serious sanction or dismissal. Your employer must first investigate and then make a decision whether there is sufficient evidence to raise disciplinary proceedings against you. As part of the disciplinary stage, you should be afforded opportunities to explain your concerns about any investigation. This will afford the individual handling your disciplinary case the opportunity to look into your concerns. Also, if you feel the flawed investigation has led to a detrimental disciplinary decision being taken against you, you will still have an opportunity to raise these matters at your appeal hearing.

Most reasonable employers take concerns about investigations seriously and may overturn a disciplinary decision found to be based on a flawed investigation on appeal. If after all these stages, you feel your concerns have been ignored, it may be worthwhile seeking legal advice about raising an Employment Tribunal claim.

You should be given notice of the reason you have been called to any formal meeting and what you can expect to be discussed. This is to allow transparency in the disciplinary process and ensure matters are dealt with as openly as possible.

In relation to any disciplinary meeting, you should be forewarned before any meeting of the possible outcome of that meeting, for example a final written warning or dismissal. The rationale behind this is to allow you the opportunity to properly prepare for the meeting and so you cannot be surprised if that sanction is then later applied to you.

In most disciplinary situations, you will only have the right to be accompanied by a trade union representative or work colleague to any disciplinary hearing with your employer. Some employers may allow you to be accompanied by someone else; however, you should be aware they have no legal obligation to allow anyone outside these permitted companions.

Since May 2014, to bring any type of unfair dismissal claim you are required to do two main things:

• Register for Early Conciliation with Acas, and
• Bring your claim within three months from the date your employment ended, or for a discrimination claim, from the last date that discrimination occurred

When you register for Early Conciliation with Acas, your three-month claim period is automatically ‘paused’ for the duration of the conciliation period, which can last up to one month, with an additional 14 days that can be added on if additional conciliation time is needed.

Through Early Conciliation, an Acas Officer contacts both you and your employer to understand your concerns or issues. The Acas Officer will want to get a picture of why you feel you need to raise an employment claim against your employer, but will also speak to your employer to gauge why certain action was taken. The purpose of this is to see whether conciliation can lead to a resolution between parties. If so, Acas will record any position reached in a special type of settlement agreement known as a COT3 Agreement.

If conciliation is not fruitful, Acas will issue you with an EC Certificate, which contains unique information necessary for you to bring an Employment Tribunal claim.

While there are often situations where the employee or employer has no interest in pursuing Acas conciliation in any event – meaning Acas’ involvement in the dispute will be minimal – it is always still necessary to obtain an EC Certificate before lodging a tribunal claim. Without the EC Certificate, the tribunal does not have jurisdiction to hear your claim. However, you must be alert to the fact your three-month claim period is restarted once the EC Certificate has been issued. Acas will not automatically pass your claim onto the Employment Tribunal so you must still raise it formally with the tribunal using a Form ET1.

In most unfair dismissal claims, the Employment Tribunal must receive your claim within three months less one day, from the date your employment ended.

For discrimination claims or complaints relating to non-payment of salary or holiday pay, the three-month period begins from the date of the act complained of (which may be continuing, in which case the time for starting proceedings will also continue to run).

The above time limit for issuing a tribunal claim can, however, be extended. This can happen because before you can issue a claim in the employment tribunal, Acas must be notified within the above three-month period of the intention to issue proceedings, so invoking its ‘Early Conciliation Service’, explained under ‘I have been dismissed and want to raise a claim. What do I do?’ above.

After Acas has been contacted, the time limit for making a claim to the tribunal is automatically ‘paused’ for up to one calendar month, plus a further 14 days if more time is needed for conciliation. If the case is not settled by this time, Acas will bring the early conciliation to a close and issue a formal certificate to this effect. You can then issue your tribunal claim. It may be that the certificate is issued much earlier than the initial calendar month Acas allows for conciliation (see below).

After the ‘pause’ that comes into play when Acas is first notified of a claim, the time for issuing the tribunal claim will start to run again once the certificate from Acas is received (stating that early conciliation has ended). You will then have a period of one month or the balance of the original three-month time period (whichever is longest) from this time in which to lodge your claim. If you make contact with Acas just before the end of the original three-month time limit, you will not be time barred while the early conciliation process is happening. You would have the period of the Acas conciliation time, plus an additional one month from the date of the certificate.

These are complicated rules and it is easy to come unstuck. It is always best to obtain specialist employment law advice on this.