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 first name (required)

    Your last name (required)

    Your email (required)

    Your telephone number (required)

    Brief details of your enquiry

    Testimonials

    4.80 Average

    330 Reviews

    Arabella B

    I am so grateful to Caroline Lewis at Redmans Solicitor’s for helping me with my Unfair Dismissal Case. I was seriously impressed how easy Redmans made the whole case, and am very happy with my Settlement. I have recommended your firm to at least 5 people in the last 3 months.. Thank you Caroline and everyone at Redmans. You are Brilliant .

    Posted 1 day ago

    Anonymous

    Highly professional and efficient service.

    Posted 1 day ago

    Tanya T

    I had the pleasure of Chris and Sacha’s experience with a work matter. They made me feel at ease with the process and explained everything thoroughly. Would happily recommend Redmans especially Chris and use them if needed I’m the future. Thank you!

    Posted 1 day ago

    Anonymous

    I used the services of Redmans solicitors and was a quick outstanding service I engaged them in a settlement agreement after been made redundant extremely professional at all that was done and would definetly use them again

    Posted 1 day ago

    Adrian A

    Spot on support, enough to get the matter at hand sorted. No beating around the bush, no nonsense - got the job done and we all moved on.

    Posted 1 day ago

    Mark Q

    Five Stars I was most impressed by the attention, courtesy, speed and above all, professionalism in dealing with my Settlement Agreement. I would certainly have no problem in recommending this firm to anyone in need of their services.

    Posted 1 week ago

    Ade A

    I was surprisingly impressed by how Redmans Solicitors handle my case. From the moment I call them to the absolute end of my case, they always look after my best interest.

    Posted 1 week ago

    Malcolm P

    they were there when others were not

    Posted 2 weeks ago

    Anonymous

    Excellent service all the way through from start to finish. Really great support and guidance from the team, they secured the offer that I wanted. I can't recommend Redmans highly enough and will be sure to use their services again should the need arise.

    Posted 2 weeks ago

    Anonymous

    Efficient and quick service!

    Posted 1 month ago

    Karen B

    Quick response very helpful Issue raised dealt with very quickly

    Posted 1 month ago

    Carmen T

    Redmans give Great service and advice on reading contracts. They can explain all the solicitors jargon into words that you can understand. I received excellent service an I will use them again and again.

    Posted 1 month ago

    Anonymous

    Very grateful for Mel’s efforts in handling my case from start to finish which I would have found very stressful without it. She was very professional, friendly and we had a positive outcome. Highly recommend.

    Posted 1 month ago

    Nalin W

    Mel Chin was my Legal Executive when I engaged the services of Redmans Solicitors to help with a redundancy matter. She was incredibly approachable and professional from start to finish. Specially I have to mention regarding prompt reply to all my email queries, It was super quick. I would thoroughly recommend Mel Chin. Many Thanks

    Posted 2 months ago

    Anonymous

    I'd highly recommend Redmans Solicitors. Mel was very helpful and assisted me throughout my case.

    Posted 2 months ago

    Anonymous

    Sacha was very thorough and very helpful, with great advice on when to act and when to wait on my case.

    Posted 2 months ago

    Anonymous

    I have been very pleased with the support I got from Redmans Solicitors on my case with my employer. Caroline has always helped me to put things in perspective and showed me different scenarios ultimately to help me taking the right decision. She was very professional and always available when I needed, and at the same time also emphatic which I found also really important to establish a strong relationship. Will definitely recommend!

    Posted 2 months ago

    Anonymous

    Prompt and efficient response to my enquiries. Excellent negotiating skills with my employer which considerably improved the terms of my settlement agreement.

    Posted 2 months ago

    Anonymous

    Very quick and professional service , Rana was very helpful

    Posted 2 months ago

    James G

    Very professional, knowledgeable and kept me informed at every stage of my case. I would highly recommend Redmans.

    Posted 3 months ago

    Pravina P

    Chris was really good and help solve my issues with current company. I would recommend him to anyone.

    Posted 3 months ago