3. Unfair and constructive dismissal

In certain situations, you may be able to take legal action if you’re dismissed.

Unfair dismissal

Your dismissal could be unfair if your employer doesn’t:

  • have a good reason for dismissing you
  • follow the company’s formal disciplinary or dismissal process (or the statutory minimum dismissal procedure in Northern Ireland)

Situations when your dismissal is likely to be unfair include if you:

  • asked for flexible working
  • refused to give up your working time rights - eg to take rest breaks
  • resigned and gave the correct notice period
  • joined a trade union
  • took part in legal industrial action that lasted 12 weeks or less
  • needed time off for jury service
  • applied for maternity, paternity and adoption leave
  • were on any maternity, paternity and adoption leave you’re entitled to
  • tried to enforce your right to receive Working Tax Credits
  • exposed wrongdoing in the workplace (whistleblowing)
  • were forced to retire (known as ‘compulsory retirement’)

Compulsory retirement is not allowed unless your employer can objectively justify it, but you can challenge it at an employment tribunal.

Constructive dismissal

Constructive dismissal is when you’re forced to leave your job against your will because of your employer’s conduct.

The reasons you leave your job must be serious, for example, they:

  • don’t pay you or suddenly demote you for no reason
  • force you to accept unreasonable changes to how you work - eg tell you to work night shifts when your contract is only for day work
  • let other employees harass or bully you

Your employer’s breach of contract may be one serious incident or a series of incidents that are serious when taken together.

You should try and sort any issues out by speaking to your employer to solve the dispute.

If you do have a case for constructive dismissal, you should leave your job immediately - your employer may argue that, by staying, you accepted the conduct or treatment.

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