Articles Dismissal Constructive Dismissal - and how to avoid it

The Ins And Outs Of Constructive Dismissal

Could your former employee bring a case for constructive dismissal? If you're not sure what constructive dismissal means and how to avoid it then read on. Getting this information will help you to stay on the right side of the law and avoid costly payouts that could put your company's finances under strain. First of all, let's look at what this type of dismissal really is. If you do something that forces an employee to leave, even if you haven't actually sacked them, then that employee may complain of constructive dismissal.

This type of dismissal is not very easy for employees to prove, though there are some situations that make it obvious. These could include:

  • making employees work in unsuitable or dangerous situations and conditions
  • changing the terms of employees' contract without their agreement
  • demoting an employee
  • failure to pay an employee
  • instigating or allowing bullying or harassment

Wrongful Or Unfair Dismissal

Another aspect is whether the dismissal is wrongful or unfair. If you force an employee to leave by breaching their contract, then this is wrongful dismissal. Remember, when you hire an employee, you offer certain terms in a letter or contract that set out the terms of your working relationship. There may also be implied terms that affect the way you work together. When failure to stick to these leads to an employee leaving, then you could be facing a case for wrongful constructive dismissal.

A dismissal is unfair if you don't follow the procedures set out in your contract or staff handbook. In general, these procedures allow for a system of warnings, in which there is written evidence of both your grievance as an employer and the employee's response to that. Forcing an employee to leave without a good reason also counts as unfair constructive dismissal.

Generally, employees will usually go through the grievance procedure before bringing a case for unfair dismissal. However, if this process fails, then you could be facing an employment tribunal. The compensation you will have to pay differs depending on the type of dismissal. If the dismissal is judged to be wrongful, then you will have to make up the appropriate pay for the notice period. However, if it is deemed to be unfair, then you will have to make up the amount that the employee would have earned to that point. Constructive dismissal can be costly; make sure you avoid it.

Deminos are HR Outsourcing and employment law specialists. To find out more please call us on 0191 460 1111 or visit http://www.deminos.co.uk

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