Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

In an unfair dismissal case there are two obvious elements that have to be analysed – whether the Claimant was dismissed, and (if so) whether that dismissal was unfair. An employee can’t be unfairly dismissed without having been dismissed and, conversely, the dismissal can’t have been unfair unless the manner in which it was effected was unlawful. Most commentary on unfair dismissal examines the unfairness of the dismissal (and therefore its unlawfulness) but the issue of whether a Claimant has been dismissed is equally, if not more, important. This post will therefore examine when a dismissal occurs (and a future post will examine when a dismissal does not occur).

A dismissal can occur in one of three ways – termination of the contract of employment by the employer, termination of the contract of employment by the employee, or the completion of a fixed-term contract. We’ll look at termination by the employer in this post and proceed in the future to an examination of the other two elements.

Termination by the employer

Termination of the contract of employment by the employer can be with or without notice (i.e. the employer may choose to give the employee notice of termination or may summarily dismiss them).

The important element in cases where the employer has terminated the contract is what the employer’s intention was at the time of the purported dismissal. Generally, if the intention to dismiss is clear then the employee is entitled to take this at face value (although this doesn’t involve a consideration of whether the employer later offered to re-employ the employee – an important issue). However, if the intention of the employer in purportedly dismissing the employee is ambiguous then the situation must be assessed objectively – how would the reasonable man view the employer’s intentions in dismissing them? Words allegedly dismissing an employee must be given their ordinary meaning in the context they’re uttered. This context includes the nature of the employment, the relationship between the parties, and a consideration of what these words would normally mean. For example, if an employee is told to “fuck off” by their line manager, is this a dismissal? This really depends, as above, on the context. If words to that effect were used regularly during the working day (i.e. in a pressurised environment) then it probably wouldn’t be reasonable for the employee to take this as signifying intention to dismiss. Again, an examination of the context within which the dismissal took effect is crucial to determining whether a dismissal took effect.

If the employee resigns under duress, is this a dismissal? Again, this depends on the particular facts of the situation. The general rule is that a dismissal is effected if there is no choice in the matter. However, in more complicated situations there is a “fuzzy grey line” as to whether a dismissal has taken place. For example, where the employee has been invited to resign or be dismissed, does this constitute dismissal? In usual circumstances, yes. However, if there are other factors at play extraneous to this (such as the employee’s conduct) then there either may not have been judged to be a dismissal or, alternatively, the dismissal may be deemed to be fair.

Unilaterally imposing radically different contract terms can also effect a dismissal. The imposition of new terms destroys (terminates) the old contract of employment and is repudiatory on the employer’s behalf. The employee can then choose whether to accept the repudiatory breach of contract (and effectively be dismissed) or waive the breach and work under the new contract of employment. The decision of the employee will obviously be dependent on their prevailing situation. This situation is also known as “constructive dismissal”.

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Leave a Reply

Your email address will not be published. Required fields are marked *

 

Our awards

Request a callback

Your name

Your email

Your telephone number

Contact us

Please feel free to discuss your own position and concerns. Contact your nearest office on:

T: 020 3397 3603
E: enquiries@redmans.co.uk
W: www.redmans.co.uk

Testimonials

4.75 Average

120 Reviews

Anonymous

Easy to get hold of. Quick.

Posted 1 day ago

Owen J

Very helpful, efficient service.

Posted 2 days ago

Anonymous

I am very lucky that I worked with Mr. Chris Hadrill and he managed my case very progressively with an analytical approach and trustfully. Of course with a very positive result. I strongly recommend Mr. Hadrill to any one seeking for a successful result from a highly qualified solicitor.

Posted 1 week ago

Kulbir S

Amazing, quick friendly service from Chris from the start and Caroline. They made me feel at ease during a difficult time, they understood and advised accordingly and I am really happy with the outcome of my case. Will always advise anyone who needs legal advice to contact Redmans, I’m so glad that I did and can confidently say I don’t think any other firm could have handled my case any better. Well done guys, wish you all the best and please keep doing what your doing, simply the best!

Posted 1 week ago

Mark A

Excellent service - rapid and “to the point” advice given to ensure meeting the target time frame

Posted 1 week ago

Anonymous

Chris Hadrill kept me sane during the negotiations with my employer. He was courteous professional and he cared about doing the best he could for me. I will use Redmans again if ever I need an employment solicitor. Excellent service.

Posted 1 week ago

Muhammad Z

Awesome services. Professionals at their best .

Posted 1 week ago

Anonymous

Thanks for the advice and for negotiating a good outcome. Good to have the support at a very stressful time

Posted 1 week ago

Chloe F

My solicitor at Redmans was very helpful and efficient. Really pleased with the smooth service.

Posted 3 weeks ago

Anonymous

Chris was absolutely excellent. Clear and concise, offering sound advice.

Posted 3 weeks ago

Tim O

Experienced and competent advisors

Posted 3 weeks ago

Rachel A

Quick and expert assistance. I would highly recommend Chris for any of your legal needs.

Posted 4 weeks ago

Joe S

I was very happy with the service provided by Chris and the team at Redmans Solicitors. I felt very comfortable discussing all matters with Chris and am very grateful for all the help and guidance I was given throughout the whole process. I would definitely recommend Redmans Solicitors to friends and family!

Posted 4 weeks ago

Anonymous

I had a very good experience working with Chris Hadrill during a difficult and emotional time. This held true from the moment I spoke to him on the phone, to the end of the process. Overall, he was attentive, professional and highly supportive. He provided sound advice and clarity. It was the reviews that led me to Redmans! I was very happy to know they were all true. I highly recommend working with Redmans Solicitors. Thank-you to the entire team!

Posted 1 month ago

Anonymous

Good service

Posted 1 month ago

Anonymous

Excellent professional service. Highly recommend.

Posted 1 month ago

Rob O

Very prompt response and I could not fault the service. My solicitor listened carefully to the details of my case and I felt very confident in the advice I was offered. All emails and work done on my behalf with my former employer was of the highest standard and Redmans helped take a lot of the stress out of the situation for me.

Posted 1 month ago

Mike H

Very professional, friendly, proactive. I would highly recommend Redmans.

Posted 1 month ago

Anonymous

Fantastic and quick service!

Posted 1 month ago

Anonymous

I was very satisfied with Redmans' service. Clear, sensible advice and the bill was in line with their estimate. I would recommend them.

Posted 1 month ago

Eugene A

Excellent communication and guidance provided on the redundancy settlement process. Process was concluded quickly, very satisfied with service.

Posted 1 month ago