The difference between unfair dismissal and constructive dismissal

Unfair dismissal is whereby an employee’s employment contract has been terminated without a fair or justifiable reason, it breaches the terms of the contract or without following the correct procedure. An example of this would be to dismiss an employee without giving them prior notice as outlined within their employment contract or without a pay in lieu of notice.

There are several reasons for dismissal which would be deemed as being automatically unfair. These include, but are not limited to, making a flexible working request, being pregnant/on maternity leave, being involved in ‘whistleblowing’ or for doing jury service. An employee does not require 2 years’ service to be able to make a claim for unfair dismissal. If an employee is dismissed due to gross misconduct then the employee will need to leave immediately, they will not receive a notice period or receive notice pay.

Constructive dismissal is when an employee feels that they have no other option but to resign as a result of the employer’s behaviour or actions in breaching the employment contract.

Examples of constructive dismissal can include, but are not limited to, being bullied/discriminated against, making unreasonable changes to working patterns without agreement or raising a grievance that the employee refuses to investigate. An employee will require 2 years’ service in order to bring a claim for constructive dismissal.

In either of these circumstances, a claim must be made within 3 months less 1 day of the date their employment ended. In almost all cases, the date someone’s employment ends is either the last day of their notice period or the day the employee was dismissed if the employer did not give notice. If you want to make a claim to an Employment Tribunal then you must contact ACAS first and you will be offered ‘Early Conciliation’ to try and resolve the matter without the need to involve the Tribunal.

Bryan & Armstrong Solicitors have an experienced employment department that are here to advise you if you are in a situation like this. Please contact Elizabeth Isola Elizabeth.Isola@bryanandarmstrong.co.uk or Jodie Holmes Jodie.Holmes@bryanandarmstrong.co.uk if you have further queries on or call us on 01623 624505.