Unfair & Constructive Dismissal

When a fair process is not followed, then any dismissal could be considered unfair when a claim is lodged.

Constructive unfair dismissal is when the employee feels the employer has fundamentally breached the employment contract in such a way as the employee feels they need to leave the employer.  For example, not investigating a grievance the employee has lodged, or not paying the employee.

A dismissal occurs when:

• The employer terminates the contract (with or without notice).
• A fixed-term contract expires and is not renewed.
• The employee resigns due to the employer’s conduct (constructive dismissal).
• The employer gives notice, and the employee resigns before the notice period ends.

• With notice: Date notice expires. 
• Without notice: Date of termination.
• Fixed-term contract: Date of expiry. 

EDT is crucial for calculating time limits for claims. 

• Dismissal is fair if based on:
• Capability or qualifications
• Conduct
• Redundancy*
• Statutory/Legal restrictions (e.g. loss of driving licence)
• Other substantial reasons (e.g. end of maternity cover)
• Retirement, if handled fairly

Occurs when:

• Employer ceases business or location operations 
• Business needs for specific work or location diminish

Associated businesses are treated as one for redundancy purposes.

Tribunal assesses reasonableness based on employer size, resources, and context.

Employees may be represented at formal disciplinary or grievance hearings by: 

• A fellow employee
• A registered trade union official
• A certified non-employed union representative

Informal meetings do not carry this right unless they escalate.

Dismissal is automatically unfair if related to:

• Trade union membership or activity
• Asserting statutory rights (e.g. minimum wage, employment terms, payslips)
• Selection for redundancy based on union activity or rights assertion
• Representation in hearings
• Discrimination (under the Discrimination (Jersey) Law 2013)
• Pregnancy or family reasons 

No minimum service required to claim in these cases. 

• 52 weeks continuous service required to claim unfair dismissal
• No minimum service needed for automatic unfair dismissal claims

• Must be filed no later than 7 weeks and 6 days of EDT 
• Can be filed before EDT if notice is given

Tribunal strictly enforces this deadline. 

• No claim if employee is of compulsory school age
• No upper age limit- claims allowed beyond age 65

Tribunal may:

• Award compensation based on length of service
• Order reinstatement or re-engagement
• Add up to £30,000 for unpaid contractual entitlements
• Award notice pay if not given
• Up to £30,000 for acts of discrimination.

• Contract ends on date of death
• Tribunal may award compensation to the employee’s estate

The Tribunal may reduce compensation for unfair dismissal in the following cases:

1. Employee conduct contributed directly to the dismissal.
2. Employee rejected a settlement offer from the employer equal to the maximum award the Tribunal could grant.
3. Other just and equitable circumstances warrant a reduction.

Re-employment Options 

If the employee requests re-employment, the Tribunal may order:

Reinstatement

• Employee is treated as if the dismissal never occurred.
• No loss of seniority, continuity of service, or financial status (excluding arrears of pay).

Re-engagement 

• Employee is re-employed, not necessarily in the same role.
• Terms should be as favourable as reinstatement, unless the employee was partly at fault.

Reinstatement is considered first; if not appropriate, re-engagement is considered. 

Failure to Comply with Re-employment Order

• Tribunal may award up to 26 weeks’ pay in additional compensation.
• Employer must prove it was not reasonably practicable to comply. 
• Hiring a replacement is not a valid excuse.

Financial Loss Between Dismissal and Re-employment

No compensation for lost pay during this period.

Tribunal may order:

• Reinstatement of pension and benefit schemes
• Payment of expected bonuses (excluding tips/commission)
• Application of improved terms (e.g. pay rises, holiday entitlement)

How much do you know about Constructive Dismissal?

Watch our video to learn about a Case Study on this subject.

If you have any concerns or need some advice, please feel free to reach out to us.