What you need to know about constructive & wrongful dismissal

Several issues can arise in situations where work comes to an end. Constructive dismissal is one of them – this is where you feel forced to quit your job due to your work conditions becoming intolerable.

Another is wrongful dismissal, where you are dismissed in breach of the terms of your contract – for example, when you are not given the notice period you are entitled to.

It’s important to note that neither of these issues constitute unfair dismissal in themselves, but they may open the way for you to make a claim for unfair dismissal.

Constructive dismissal

Constructive dismissal is the term used for when you resign from your job due to your employer’s conduct or due to actions that make you feel as though you are being ‘forced out’.

Even though it seems as though this is not dismissal because you chose to resign, if your employer treats you so badly at work that they make you feel as though you need to leave, this counts as them breaching their contract with you and therefore amounts to a dismissal.

The conduct of your employer must, however, be seriously unacceptable before you can consider yourself to have been constructively dismissed. It may be that their actions build up over time to make your job intolerable, or it could be that one extremely severe incident leads you to resign.

Some ways in which an employer could force you into a constructive dismissal may include:

• a failure to pay your wages or to pay them on time;
• changing your working conditions without asking you; for example, telling you to work in another location which is difficult for you to get to;
• harassing or insulting you at work.

You will usually be expected to initially try and sort out the problem with your employer, rather than immediately resigning. As a result, your employer is required to provide information on their procedures for raising a grievance.

However, if the grievance procedure fails to help, you may then reach a point where you feel you have no choice but to resign. If this is the case, you should do so as soon as possible, as it may be hard to prove that your working conditions were unacceptable if you tolerated them for a long time.

If you try to bring a claim afterwards, your employer may argue that you had effectively accepted what was happening.

It is important to note that having been constructively dismissed does not necessarily mean that you were unfairly dismissed; it only shows that your resignation counts as a dismissal. You will have to prove separately that the reason for your dismissal was unfair.

If you feel that you have been unfairly or constructively dismissed, there are a number of steps you can take to resolve the issue. Take a look at our problems at work post to find out what you will need to do.

Wrongful dismissal

If your employer dismisses you in a way which breaches the terms of your contract, this is what is known as ‘wrongful dismissal’.

Wrongful dismissal cases usually arise when an employer either fails to give you sufficient notice as set out in your contract, or does not follow the appropriate procedures that they have laid down for dismissal situations.

1. Statutory notice periods

If your notice period is not stated in your contract, then you have a fall back in the form of your statutory employment rights. The minimum legal notice periods are as follows:

If your contract promises you a longer notice period, you are of course entitled to that amount of notice, but you should always receive the statutory minimum notice period if nothing else has been specified.

If you are not legally entitled to a specific minimal notice period – if you have been employed for less than a month, for example – your employment rights still state that you should get a “reasonable” notice period.

This is of course open to interpretation, but your employer will need to demonstrate that they acted reasonably if challenged on it. This may be based on how often you get paid – for example, you may be able to argue that a month’s notice period is reasonable if you are paid once a month.

However, an employer could dismiss you without being legally required to give you notice on grounds of gross misconduct.

2. Compensation amounts and other grounds for claiming

The award you can expect for a wrongful dismissal claim is likely to amount to what you would have earned had you been allowed to work through your notice period, as you should have been permitted to under the terms of your contract.

It is not just the notice period that can lead to a claim of wrongful dismissal. Your employer will also be required to follow certain procedures if they want to dismiss you, so a failure to do so means that they could find themselves in hot water.

Essentially, any breach of contract performed when dismissing an employee can give rise to a wrongful dismissal claim.

3. Settlement agreements

In certain situations, you may also be offered a settlement or compromise agreement by your employer. These are increasingly being used to reach resolutions which benefit both the employer and employee. DAS Law can help support you through the process to a suitable outcome.

More on settlement agreements

4. Who can claim for wrongful dismissal?

Because a wrongful dismissal claim involves breach of contract, there is no minimum time period for which you must have worked in order to make one. In breaching the contract, your employer has broken the law.

For this reason, while an employment tribunal can hear a wrongful dismissal claim which does not exceed £25,000 in value, they could also go before a county court or high court.

Wrongful dismissal does not actually necessarily mean that the employer had no good reason to dismiss you or would not have been permitted to, just that the way in which they carried out your dismissal was incorrect.

If you have a claim for unfair dismissal, our solicitors may be able to help you.

How we can help