Definition of dismissal in unfair dismissal

The following Employment practice note provides comprehensive and up to date legal information covering:

  • Definition of dismissal in unfair dismissal
  • Express dismissal
  • Dismissal must be communicated to the employee
  • The problem of ambiguous (or unambiguous) language
  • Employee’s subsequent counter-notice
  • Dismissal with immediate effect during employee’s notice
  • ‘Resign or be dismissed’
  • Imposition of new contractual terms (dismissal and re-engagement)
  • Where employer accepts fundamental breach by employee
  • Intimation of future dismissal
  • More...

Definition of dismissal in unfair dismissal

To succeed in a claim of unfair dismissal, the claimant must establish that they were dismissed by the employer. A contract of employment may terminate in a number of different ways (see Practice Note: Distinguishing dismissal from other forms of termination). However, the circumstances in which an employee is treated as having been dismissed for the purposes of an unfair dismissal claim are set out in section 95 of the Employment Rights Act 1996 (ERA 1996) and limited to:

  1. where the employee's contract of employment is terminated by the employer, whether with or without notice

  2. where the employer gives notice to terminate the contract and, within the notice period, the employee gives counter-notice that expires before the end of the original notice period

  3. where the contract of employment is a limited-term contract (eg a fixed-term contract) and terminates on the happening of the limiting event without being renewed under the same contract

  4. where the employee terminates the contract by resigning, whether with or without notice, in circumstances where they are entitled to do so by reason of the employer's conduct (constructive dismissal)

Dismissal does not include:

  1. termination by mutual consent of the employer and employee, although an employment tribunal will scrutinise the arrangement to satisfy itself that the employee genuinely consented to the termination and was not coerced into it

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