Real Employment Law Advice

Unfairly Dismissed – Can I refuse to return to work?

What happens if I am unfairly dismissed and after appealing my Employer says I can return to work but with a warning. Do I have to go back to work?

The simple answer is no you do not have to return to work. You can refuse to accept the warning and not return if you believe that you were unfairly dismissed in the first place. However the future effect on your refusal will depend upon what it says in the Employer’s appeal procedures.

If the appeal procedure states that the Employer can change a dismissal to a lesser penalty, such as a warning or demotion, then they can do so. If however you are unhappy about this and refuse to return to work you would be unlikely to succeed in a claim for unfair dismissal because the dismissal decision would have been rectified.

If the appeal procedure states that a lesser penalty can be imposed but with your consent, and you refuse then the dismissal decision will remain and you can pursue an unfair dismissal claim.

If I cannot claim that I have been unfairly dismissed and I do not want to go back what can I do?

You may still be able to pursue a claim for constructive unfair dismissal if you can show that the Employer’s conduct has resulted in a fundamental breach of your contract.

This means that the Employer’s behaviour has resulted in a significant breach that is integral to your employment contract, or which shows they no longer intend to be bound by the terms of your contract.

In this case you are effectively resigning your employment because of their behaviour rather than being unfairly dismissed.

 

What should I do next?

If you find yourself in the position where you have been unfairly dismissed and your Employer has offered you your job back, before making a decision you should get some advice about your situation and potential claims. You do not want to make a quick decision that could mean that you are out of work and have no claim for unfair dismissal or compensation.

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5 Responses

  1. Hi
    Iwas dismissed from my job. I appealed to the clerk to Govenors’ and the company has offered me my job back but I don’t want to return . What do I do?
    Advice please

    1. Dear Pat

      Thank you for your comment. If you do not wish to return to work then you do not have to but it could effect any claim for unfair dismissal. You could however have a separate claim for constructive unfair dismissal.

      I would be very happy to discuss your case with you if you would like some specific advice you can contact me on 023 8098 2006.

      Kind regards

      Alison

  2. Hello,
    was dismissed from my job in January I appealed to the manager area and the company has offered me a return to work with a disciplinary sanction of 12months with a fresh start in another workplace and with a back date salary but I don’t want to return . What do I do?
    Advice please

    1. Hi Marie

      Thank you for your comment.

      It is good news that your appeal was successful as it gives you options now and you are in control of how you decide to proceed.

      If you decide that you no longer wish to remain employed by them then you can of course now resign, and your termination of employment will take effect from when you resign. Your employer will be obliged to pay you from the period of your original dismissal to the date of your resignation.

      If you resign you may have a claim for constructive unfair dismissal, however this will depend on a number of factors, including how long you have been employed for, the employer’s behaviour and the reasons for your decision not to return. If you think that you may have a claim for constructive dismissal it is important to get advice as soon as possible and before you resign.

      Myself and my team would be happy to help you and in most cases can agree a fixed fee for the work (giving you certainty about your costs). If you would like any help please do get in touch alison@realemploymentlawadvice.co.uk.

      Best regards

      Alison

  3. I was recently made redundant without an prior consultation and without warning. I appealed on the grounds of incorrect process, incorrect information in the letter and several other points and I have won the appeal and I have been offered my job back. I do not want to return to the company so how can I get a compensation / settlement deal.

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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.

The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.


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