It’s hard to imagine how you would react if you lost your job. It might seem like a disaster for some and an inconvenience for others. Either way, it comes as a shock. If it does happen, your first thought is unlikely to be about the legal definition of your experience but if you decide to challenge your employer, possibly taking them to an employment tribunal to seek compensation or reinstatement, the way you bring your case will depend on precisely that definition. Constructive dismissal and unfair dismissal have the same result, but they require you to prove different elements.
What is Unfair Dismissal?
This would be the correct description if you have been fired from your job in a way that is unlawful. Unlawful means the employer has not complied with their statutory or contractual obligations in dismissing you. For example, they might accelerate the agreed disciplinary procedure and not abide by the system of warnings you are entitled to expect, or they might clothe a dismissal in the guise of redundancy simply as an excuse to terminate your employment.
In making a claim for unfair dismissal, you can rely on evidence of the employer’s failure to follow procedure to prove your argument. If they have not complied, then there is case which lawyers call ‘prima facie’, which means ‘sufficient to establish a fact or raise a presumption unless disproved or rebutted’.
A comprehensive list of automatically unfair reasons can be found on the ACAS website
What is Constructive Dismissal?
This is a rather different scenario in which you are not fired, but instead, you resign under duress. The most common examples are cases in which the employer’s behaviour is so unreasonable as to make it impossible for you to stay. Sometimes it may not be the employer who is directly responsible but a colleague or a line manager, for whose behaviour the employer is ultimately responsible.
If you have been placed in an untenable or unbearable situation and therefore forced to resign, then you may well have grounds to make a constructive dismissal claim. This can be harder to prove than unfair dismissal which is largely concerned with procedure. At a tribunal, you would need to produce conclusive or at least persuasive evidence that the behaviour of the employer or colleague was so severe as to force you to give up your job rather than stay and endure it.
Some examples of successful grounds include the failure to pay wages, unreasonable demotion, imposing unreasonable changes in working hours, harassment, and bullying. You will have to prove both the seriousness of the behaviour and the reasons why it led you to resign.
The Relationship Between the Two
While all constructive dismissals are cases of unfair dismissal, not all unfair dismissals are constructive ones. In order to bring a constructive dismissal claim, you must satisfy the eligibility requirements of unfair dismissal, one of the most important being the stipulation that you have been with your employer for at least two years. Although the type of evidence will be different, the procedure is the same. If you find yourself in either position, you may want to contact https://www.employmentlawfriend.co.uk/constructive-dismissal Employment Law Friend or a similar expert as soon as possible for help in building a case and pursuing a claim.
Although an employment tribunal is less formal than a court of law, it has equally exacting standards of evidence and the support of a legal professional is essential. 95% of cases are settled out of court, but you need to be prepared for a full hearing.