What is a dismissal
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27 November 2009
By Jane Coyle
In order to bring a claim for unfair dismissal, an employee must
have been dismissed. There will be a dismissal if:
The employer terminates the employment, either summarily (that
is, with immediate effect) or on notice.
The employee resigns (with or without notice) and can establish
that they were constructively dismissed. This requires the employee to show
There was a fundamental breach of contract by the employer.
They resigned because of that breach.
They did not delay before resigning (as a delay can mean that
the employee has affirmed the contract and lost their right to claim
A constructive dismissal is not necessarily an unfair dismissal.
The tribunal will look at the employer's conduct and decide whether it acted
The employer does not renew a fixed-term contract on the expiry
of the fixed term.
The employee retires.
The employee will not have been dismissed if their employment
Following the employee's resignation unless of course there is a
constructive dismissal. There will be a dismissal if the employee has given
notice and the employer dismisses them during the notice period.
By agreement of the parties. This is unlikely to include
voluntary redundancies provided there is a true redundancy situation but may
include early retirement.
By operation of law, for example:
Because the contract has been frustrated by an unforeseeable
event that makes performance impossible or unlawful or radically changes the
contract. In practice, it is difficult to establish that a contract has been
Because of a supervening event. This could include the death of
the employee or an individual employer, the dissolution or major reconstruction
of the employing partnership and certain insolvency situations.
Jane Coyle is a trainee solicitor at Lawdit and can be
contacted at firstname.lastname@example.org
About the Author
Lawdit Solicitors offer services and
advice for litigation, commercial contracts, Intellectual Property and IT legal
agreements. We are experts in commercial law with a heavy emphasis on
Intellectual Property, Internet and e-commerce law. Lawdit is a member of the
International Trademark Association, the Solicitors' Association of Higher Court
Advocates and we are the appointed Solicitors to the largest webdesign
association in the world, the United Kingdom Website Designers Association.
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Article Published/Sorted/Amended on Scopulus 2009-12-08 18:05:18 in Legal Articles