If an individual brings a claim of unfair dismissal to an employment tribunal, it is up to the individual to prove that he or she was dismissed. The company may, for example, have expressly dismissed the employee, with or without notice. (If the company gave the employee notice of dismissal but the employee resigned before the notice expired, the employee is still viewed as having been dismissed.)
It is relatively straightforward for an individual to prove dismissal if he or she was expressly dismissed. However, it may be more difficult if the employee has resigned and is alleging that he or she has been constructively dismissed. Constructive dismissal is discussed elsewhere in this Guide (constructive dismissal ), but the basic rules are that the employee must be able to prove that:
- the company acted in serious breach of his or her contract of employment, in a way that went to the heart of the employment relationship or indicated that the company no longer intended to be bound by one or more of the essential terms of the contract; and
- the employee's resignation was caused by the company's actions; and
- the employee did not wait too long before resigning.
If an employee has been working under a fixed-term contract and the company decides not to renew the contract on the same terms, unfair dismissal law views that as a dismissal. Likewise, if an employee has been working under a contract to perform a particular task or a contract that continues until a particular event occurs, and the company decides not to renew the contract when the task is completed or the event happens, that is a dismissal.