Constructive Dismissal

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Constructive Dismissal

What is constructive dismissal?

Constructive Dismissal[1] is where the employer has committed a fundamental breach of contract, entitling the employee to resign in response to the employer's conduct. The employee is entitled to treat him or herself as having been “dismissed” and the employer's conduct is often referred to as a “repudiatory breach”.

In effect it is when an employee is forced to resign because of their employer's unlawful behaviour; they have acted in such a way it makes the continued employment impossible.

This could take the form of a single serious breach in the contract or it may be the ‘last straw’ effect in a number of events which when put together amount to a serious breach of contract

What are the important elements of constructive dismissal?

In order to pursue a claim for constructive dismissal[2] at an employment tribunal, you must show that:

  • your employer committed a fundamental breach of your employment contract; 

  • you did not accept the breach;

  • you felt forced to resign because of that breach.

An important note; A delay in taking steps to claim constructive dismissal may amount to an acceptance of your employer’s breach and an affirmation of your contract, thus making a constructive dismissal claim difficult to make.

What actions by the employer can be classed as constructive dismissal?

Most constructive dismissal claims to the employment tribunal, will involve a breach by the implied term of mutual trust and confidence in your contract of employment, which in reality means a break down in the relationship between the employer and employee.

This implied term[3] underpins all employment relationships, and you would have to show that your employer deliberately and without good reason acted in a way to destroy such trust.

Here are a few examples of a fundamental breach by an employer include:-

  • forcing a cut in salary or other benefits or failing to pay you;

  • a detrimental change in the contract of employment, without good reason;

  • demoting you to a lesser role without reason or consultation; 

  • making it untenable for you to work by reason of your employers unreasonable attitude (this has to be serious enough);

  • a refusal to improve intolerable working conditions;

  • imposing a disciplinary or performance process that is grossly unfair and disproportionate;

  • suspending you without good reason;

  • not providing you with a safe working environment;

  • threatening to dismiss you if you do not agree to accept changes to your employment terms and conditions; 

  • failing to give you reasonable support to carry out your job without disruption, harassment, or bullying from fellow workers.

Resigning and claiming constructive dismissal is a very high-risk strategy, so unless your conditions have become absolutely intolerable, you should explore other ways of resolving the situation, which could be by raising a grievance first.

You should always take professional advice before resigning and claiming constructive dismissal.

Is constructive dismissal hard to prove?
Constructive dismissal cases do have their difficulties because you have to show that the employer's actions amounted to a fundamental breach of contract forcing you to resign as a result of that breach. It is often difficult to show that your employer's behaviour was so bad as to force you resign. Having witnesses and collecting evidence to help support your claim will make the burden of proof easier.
Do I have to resign in order to claim constructive dismissal?

Yes, you do. The contract of employment must have been terminated by you resigning. 

The law allows you to give your contractual or statutory notice when you resign and still claim constructive dismissal. However, you should give no more than the minimum notice required under your contract, or else it will look as if the relationship has not irreparably broken down after all and you may have been deemed to have affirmed the breach.

When you resign, you should spell out in your resignation letter[4] that you are leaving your job because of the employer’s fundamental breach of the employment contract.    

It is often the case when someone resigned to claim constructive dismissal it is resigning from their employment without giving any notice.

Do I need to state the reason for my departure in my resignation letter?

There is no legal requirement that you must state the reason for leaving in your resignation letter, however, it should be noted if you don’t mention anything, a tribunal may be prepared to infer that your employer’s conduct was not the real reason for your leaving your employment but this will be determined on the facts and circumstances of the case.

It is always good practice to have some evidence in writing of your employer’s conduct prior to your leaving, which is why a grievance is usually the correct and expected way to proceed before you resign.

Should you work your notice in a Constructive Dismissal claim?

In a constructive dismissal claim, the law allows you to resign with or without notice and this shouldn’t affect your claim, save in some exceptional circumstances. This will depend on the particular circumstances of each case, and would usually apply when it becomes so untenable for you to carry on a relationship with your employer for any amount of time at all that it would be considered most odd if you did.

I have left my job anyway, but do I have a claim for constructive dismissal?

You would really only have grounds to claim constructive dismissal at an employment tribunal[5]if you resigned because of your employer's behaviour. It has to be shown that the employer's conduct was so serious that it amounted to a fundamental breach of conduct, which went to the heart of the employment contract. If you were going to leave anyway and it was nothing to do with the employers behaviour, then the answer is probably no.

You should always take professional advice before resigning and claiming constructive dismissal.


References:
[1] Dismissal: your rights - GOV.UK [Internet]. [cited 2017 Mar 23]. Available from: https://www.gov.uk/dismissal/unfair-and-constructive-dismissal
[2]Participation E. Employment Rights Act 1996 [Internet]. [cited 2017 Jan 26]. Available from: http://www.legislation.gov.uk/ukpga/1996/18/part/II
[3] Employment contracts - GOV.UK [Internet]. [cited 2017 Mar 23]. Available from: https://www.gov.uk/employment-contracts-and-conditions/contract-terms
[4] Resignation letter templates [Internet]. reed.co.uk. 2013 [cited 2017 Mar 23]. Available from: https://www.reed.co.uk/career-advice/resignation-letter-templates/
[5] Make a claim to an employment tribunal - GOV.UK [Internet]. [cited 2017 Mar 13]. Available from: https://www.gov.uk/employment-tribunals/when-you-can-claim

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