What is unfair dismissal?

Overview

Unfair dismissal can happen when your school or Trust does not have a good reason for dismissing you. GOV.UK explains that in certain situations, you may be able to take legal action if you are unfairly dismissed.

In this article, we look at what constitutes unfair dismissal, refer to the qualifying period to claim unfair dismissal and explain what constructive dismissal is.

What are examples of unfair dismissal?

Your dismissal could be unfair if your employer does not:

• Have a good reason for dismissing you
• Follow the school’s/Trust’s formal disciplinary or dismissal process

We have written another article about the disciplinary process here.

Situations when your dismissal is likely to be unfair include if you:

• Asked for flexible working
• Refused to give up your working time rights – for example, to take rest breaks
• Resigned and gave the correct notice period
• Joined a trade union (it should be noted that Edapt is not a trade union)
• Took part in legal industrial action that lasted 12 weeks or less
• Needed time off for jury service
• Applied for maternity, paternity and adoption leave
• Were on any maternity, paternity and adoption leave you’re entitled to
• Tried to enforce your right to receive Working Tax Credits
• Exposed wrongdoing in the workplace (whistleblowing)
• Were forced to retire (known as ‘compulsory retirement’)

Compulsory retirement is not allowed unless your employer can objectively justify it, but you can challenge it at an employment tribunal. 

We’ve written another article about employment tribunals here.

Qualifying period to claim unfair dismissal

You must have worked for your employer for a minimum period before you qualify for the right to claim unfair dismissal at a tribunal. If you’re classed as an employee and started your job:

• On or after 6 April 2012 – the qualifying period is normally 2 years
• Before 6 April 2012 – the qualifying period is normally 1 year

In unfair dismissal claims you must make the claim to a tribunal within 3 months of being dismissed.

What is constructive dismissal?

Constructive dismissal is different to unfair dismissal. It is when you’re forced to leave your job against your will because of your employer’s conduct.

The reasons you leave your job must be serious, for example, they:

• Do not pay you or suddenly demote you for no reason
• Force you to accept unreasonable changes to how you work – for example, tell you to work night shifts when your contract is only for day work
• Let other employees harass or bully you

Your employer’s breach of contract may be one serious incident or a series of incidents that are serious when taken together.

You should try and sort any issues out by speaking to your employer to solve the dispute.

If you do have a case for constructive dismissal, you should leave your job immediately – your employer may argue that, by staying, you accepted the conduct or treatment.

We’ve written another article about constructive dismissal here.

If you are an Edapt subscriber you can contact us for support you if you believe you have been unfairly dismissed.