There are some questions that keep coming up. If you have a question about employment law or rights, why not submit it for inclusion in a future Newsletter.
One of the perennials is What is the difference between Wrongful Dismissal, Unfair Dismissal and Constructive Unfair Dismissal
This is a dismissal in breach of the (employment) contract and there is no length of service requirement as there is with unfair dismissal claims. It often arises when an employer dismisses an employee without paying all or part of their notice period. Damages are in respect of pay & benefits and limited to a maximum of £25.000.00
There is a 12 month service requirement before an employee can bring an unfair dismissal claim, though the government is considering extending it to two years. Remember that with the statutory notice of one week after a month’s service, an employee effectively has a year’s service after 51 weeks.
Employers often fail because they do not follow a correct procedure (about 90% of employer losses). An unfair dismissal, as the name suggests, is one that is unfair because there was no fair reason for it, or the way it was carried out was unfair.
Tribunals can award a maximum Compensatory Award of £65,300 by way of compensation for loss of earnings, a Basic Award equivalent to a statutory redundancy award and an award for Injury to Feelings where a discrimination claim is included.
Constructive Unfair Dismissal
This arises when an employee resigns (with or without giving notice) following a fundamental breach of contract by the employer. A fundamental breach could be something like a significant pay cut or demotion imposed without agreement.
The employee has to resign promptly and make clear that they are doing so in response to the breach by the employer. They cannot wait until they have found another job and then resign. Compensation awards are as for unfair dismissal.