If you follow the news, you’ve no doubt heard about the recent resignation of the Home Office’s top civil servant Sir Philip Rutnam and his allegations that it was a constructive dismissal.
What is the difference between constructive and unfair dismissal?
Although constructive dismissal and unfair dismissal are similar, there are key differences between the two. This includes the reason for the dismissal and where the responsibility lies for proving the case.
Constructive dismissal is when an employee is forced to leave or resign because of their employer’s behaviour. Their behaviour must be so bad that it is presumed that they no longer recognise the employment contract. Sir Philip Rutnam has alleged that applies to his case.
The reasons for this can include, but are not limited to:
- Breach of contract
- Failure to pay salary
- Failing to take a grievance seriously
- Forcing unreasonable changes to job role
- Forcing a demotion onto the employee
- Deducting payment without explanation or notice
- Allowing harassment or bullying by other members of staff.
Again, to compare to Sir Philip’s case, the final example above is alleged to apply.
Making a claim for constructive dismissal
To make a claim for constructive dismissal, you must have been employed with the same employer continuously for 24 months (2 years) unless exceptions apply.
It’s your responsibility to show that the employer has acted in breach of contract in such a way that you cannot continue with the employment.
Where the case is not obvious, it may have to go to a tribunal to be settled.
Unfair dismissal is when the employer has terminated the employment contract without good reason. The outcome to dismiss can follow a redundancy process or following a disciplinary process.
Making a claim for unfair dismissal
If you’d like to make a claim for ordinary unfair dismissal, you must have been employed with the same employer for at least 23 months and 3 weeks without a break. Exceptions do exists for what are known as automatically unfair dismissal claims.
In ordinary unfair dismissal cases, the employer must prove that it was a fair dismissal and show that it falls into one of five categories set out in the Employment Rights Act 1996.
These are as follows:
- a genuine redundancy.
- statutory duty or a restriction preventing the employment continuing.
- ‘SOSR’ (Some Other Substantial Reason) which includes other types of dismissal. that don’t fit into the above category. Your legal advisor can help you understand what this includes.
How much can I claim for constructive or unfair dismissal?
The amount you can claim for both constructive and unfair dismissal depends on the unique circumstances of your case. However, both are made up of a basic award plus a compensatory award.
The basic award is usually calculated by multiplying the length of the employee’s service in the position with their age and average weekly earnings. This is calculated in a similar way to the statutory redundancy pay.
The compensatory award will consider the money you have lost as a result of the dismissal. This could include loss of wages, loss of future wages, loss of pension and loss of statutory rights. The final amount you are awarded can also be reduced by the tribunal and a cap does exist in what a Tribunal can award in an ordinary unfair dismissal claim.
If you believe that you have been a victim to either unfair dismissal or constructive dismissal, get in touch today.
Here at Murria Solicitors, we can help you get the compensation that you deserve. Contact us today.