Unfair dismissal and constructive dismissal are legal terms for the unlawful termination of a person's employment contract. When such dismissal occurs, it is important to know that the law provides several remedies to ensure the employee does not loose out financially; provided a timely claim is made to the Employment Tribunal.
Where to Make an Application
Each constructive dismissal claim or claim for unfair dismissal must be presented to the Employment Tribunal on an ET1 form. The form is available from the Tribunals Service, either via telephone or from the Employment Tribunal website.
It is important to use the ET1 form to make a claim as current regulations mean the Tribunals Service cannot accept claims unless they are made on the designated form.
What Needs to be Shown on the Application?
Aside from the name and address of the employer, the Tribunal will also need to know the circumstances surrounding the case. It is important to be accurate with this information so before completing this section of the form.
Compiling a timeline of events is useful to make sure the circumstances of the case can be given both accurately and coherently. The easier it is for the Tribunal to follow what happened, the easier it will be to demonstrate that unfair dismissal took place.
When completing the form, give names and dates where appropriate, and provide documentation to back up each statement made in the claim. This ensures the Tribunal is able to take every point into consideration, as in the majority of cases a statement cannot be taken into account without corroborating evidence.
It is often possible to get help in making a constructive dismissal, or unfair dismissal, case from unfair dismissal solicitors on a no win no fee basis but this is not absolutely necessary. If deciding to go it alone, the Tribunal is set up to assist a litigant in person in handling their case on the day.
The Tribunal website also provides guidance on how to complete the ET1 form. It is recommended reading before starting to complete the form, and is also useful as a checklist once the form is completed.
Time Limit For Constructive and Unfair Dismissal Claims
It is important that any claim be presented to the Employment Tribunal (or Industrial Tribunal if in Northern Ireland) as quickly as possible. Not only does this ensure the details surrounding the dismissal are fresh in the memories of all concerned but it also prevents the claim being deemed out of time by the court.
Under current legislation, the applicant has only three months from the date of dismissal to lodge their claim with the Tribunal Service. The Tribunal has some discretion to award a short extension on this time in certain circumstances, but it exercises this discretion rarely outside of cases where the discrimination is ongoing at the time the claim is lodged.
It should also be noted that if a compromise agreement has been signed, it is not possible to make a claim even within the three month time limit. This is because the compromise agreement is viewed by the Tribunal as an out of court settlement that demonstrates both parties have reached an amicable settlement over the matter in dispute. No further action can then be taken, save for pursuing either party if a breach of contract occurs.
What are the Possible Outcomes?
The Tribunal is empowered to award compensation where constructive or unfair dismissal has been found, but it may also request an employee's reinstatement if this is requested. It should be noted however that an employer is not required to reinstate an employee following a successful constructive or unfair dismissal claim, and in most cases reinstatement will not be an option.
Furthermore, if the employer accepts a request for reinstatement but the employee refuses it, the amount of compensation to be awarded can be reduced.
It is also possible for the Tribunal to request re-engagement of the employee, which is a form of reinstatement but to a different job, sometimes at a different location. This can be a useful remedy where the employer and employee are both willing to continue working with one-another but it is not wise, or possible, to return the employee to their former position. Again, it is possible to reduce the amount of compensation if the employee unreasonably refuses re-engagement.
A claim for unfair dismissal is a way of ensuring a wronged employee is compensated for the employer's unlawful conduct. Claims to the Employment Tribunal must be made in a timely fashion, and will be processed as quickly as possible so as to return the employee to the state they would have been in if the unlawful conduct had not occurred, or compensate them adequately if that is not possible.
Zoe Kirk-Robinson - Zoë Kirk-Robinson is a freelance writer/artist specialising in legal writing, internet technology and creative writing. She holds a ...
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