What is a dismissal? 




The first question in any unfair dismissal claim is often whether there has been a dismissal at all. There will be a dismissal if:


• the employer ends the employment contract, with or without notice;




• the employer does not renew a fixed-term contract;




• the employee resigns in response to a fundamental (in other words, very serious) breach by the employer of the employment contract (known as constructive dismissal);




• the employee resigns in response to an unambiguous ultimatum: “resign or you will be sacked!”


• the employer unilaterally imposes fundamentally different contract terms, effectively withdrawing the old contract (Hogg v Dover College [1990] ICR 39); 




• the employee is dismissed as redundant;




• the employee is not allowed to return to work after taking maternity, adoption, paternity or shared parental leave;




• after a business transfer or a change of service provider covered by TUPE, the transferee refuses to take on the transferring workforce (see Chapter 12); or




• the employee resigns because of a serious detrimental change to their working conditions resulting from a business transfer or service provision change covered by TUPE (see Chapter 12). 




The law does not allow employees to give up their right to claim unfair dismissal (or any other statutory employment right), save in tightly controlled circumstances (see page 470: Settling a claim). This is intended to recognise the inequality of the employment relationship, and the risk that employees may feel pressured to forfeit their rights to keep their job. For example, employees are not allowed to agree in advance that particular events (such as not returning to work on an agreed date following a long break), will end the contract automatically. Any other conclusion would allow employers to circumvent the tribunal’s statutory jurisdiction to decide whether a dismissal is fair or unfair (Igbo v Johnson Matthey Chemicals Ltd [1986] IRLR 215).




A dismissal cannot take effect until it has been communicated to the employee, whether by words or actions. A mere failure to contact an employee will not amount to a dismissal: