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If an employee wishes to pursue an unfair dismissal claim he/she will first have to demonstrate that he/she was actually dismissed. The fact that the employment has come to an end does not always mean there has been a dismissal. There could have been a resignation, or termination by mutual agreement rather than by dismissal.

Essentially, the law describes three types of “dismissal”:-

  1. Termination of the employment contract BY THE EMPLOYER with or without notice,
  2. Termination of a fixed-term contract without its being renewed on the same terms, and
  3. A constructive dismissal constructive dismissal when the employee resigns with or without notice in circumstances that have arisen by reason of the EMPLOYER’S conduct.

Dismissal by the employer is usually clearly identified. Usually this will involve the employer giving notice, or in exceptional cases dismissing without notice, e.g. for gross mis-conduct. Employers always need to follow the correct procedure before dismissing an employee if they are to limit their risk of a claim of unfair dismissal, or wrongful dismissal against them. Sometimes the question of whether there has been a dismissal or not is difficult to answer, e.g. when an employee storms out of work stating that they’re leaving without indicating if they are referring to leaving for that particular day or for good.

In circumstances where employers give an ultimatum to an employee, e.g. “resign or you’ll be sacked” tribunals will often regard this conduct as amounting to a dismissal.

Occasionally an employer may become very angry at an employee and tell that employee to leave the site, or go home. In this situation a tribunal will consider all the circumstances before deciding if this amounts to a dismissal or not. However, this does pose significant risks to employers, particularly if they have failed to follow the right procedures beforehand.

The expiry of a fixed-term contracts without renewal amounts to a dismissal, even if the employee knew at the outset that it would not be renewed or that it was unlikely to be renewed. Non renewal of a fixed-term contract by mutual agreement will not amount to a dismissal.

Constructive dismissals have led to many claims in the tribunals. The former employee has to convince the tribunal that the employer has done something (or has caused by omission) that amounts to a fundamental breach of contract entitling the employee to treat him//herself as having been dismissed, and then to have left in direct consequence of that breach in good time.

In a claim of unfair dismissal, once a tribunal has accepted the fact of dismissal it will consider the grounds of dismissal. The most common grounds are misconduct, redundancy, and capability capability (or rather Incapability). There are then the questions of reasonableness and fairness to consider.


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