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Constructive Dismissal

Constructive dismissal is when an employee is forced to leave their job against their will because of their employer's conduct. This is a complicated area of employment Law and we recommend that you speak to a solicitor regarding Constructive Dismissal (see our solicitors directory).

It’s can be hard to prove that your employer's behaviour was so bad that it made you leave your job - so we would always suggest getting legal advice regarding your situation from a solicitor specialising in employment law before resigning.

It is best in the first instance to raise a grievance before any legal action is taken– this is when one of our professional Trade Union Representatives will be able to support and accompany you at your place of work.

What is Constructive dismissal?

Constructive dismissal (1) is a form of dismissal where you resign from your job because of your employer’s behaviour.

Constructive Dismissal is where your employer commits a serious breach of your employment contract (2) entitling you to resign in response to that conduct. This is where you will be entitled to treat yourself as having been “dismissed” and your employer’s conduct is often referred to as a “repudiatory breach”.

It is not enough to show merely that your employer has behaved unreasonably. There must be a fundamental breach of an express contractual term, or the implied term of “trust and confidence”. Furthermore, you must have left because of the breach, and you should make it clear when you resign that you regard yourself as having been “constructively dismissed”.

You do need to be careful not to be seen to have waived or accepted any breach by your employer. This can happen where there is a long delay in lodging a grievance or resigning.

It is possible, however, for you to continue to work ‘under protest’ following the breach by your employer, which will need to be documented, and to reserve your rights in relation to a constructive dismissal claim. However, there will come a point in time where you must either affirm the contract and continue working, or accept the breach and resign.

You would need to show for an employment tribunal (3) claim:

  1. Your employer has committed a serious breach of contract;

  2. you felt forced to leave because of that breach; and

  3. you have not done anything to suggest that you have accepted their breach or a change in employment conditions.

 

Possible grounds for constructive dismissal

Here are a few examples:

  • A serious breach of your contract (eg not paying you or suddenly demoting you for no reason);

  • forcing you to accept unreasonable changes to your conditions of employment without your agreement (eg suddenly telling you to work in another town, or making you work night shifts when your contract is only for day work);

  • bullying, harassment or violence against you by work colleagues; and

  • making you work in dangerous conditions;

  • Being treated less favourably and discriminated against;

  • allegations of poor performance which are unfounded;

  • disciplinary proceedings which are manifestly unreasonable;

  • stress at work, that has not been properly addressed;

  • failing to make reasonable adjustments where you have a disability.

The employer's breach of contract may be one serious incident or the last in a series of less important incidents that are serious when taken all together as in the ‘last straw’.

You should try and resolve the issue(s) with your employer by raising a grievance, which is in line with the ACAS code of practice (4).

If you feel you are being constructively dismissed, please contact us without any obligation to discuss how we might be able to support and accompany you at your place of work to try and resolve the problem.

  1. 1 Employment Rights Act 1996 [Internet]. Legislation.gov.uk. 2016 [cited 11 December 2016]. Available from: http://www.legislation.gov.uk/ukpga/1996/18/section/95
  1. 2  [Internet]. 2016 [cited 11 December 2016]. Available from: Employment contracts [Internet]. Employment contracts - GOV.UK. [cited 2016Dec11]. Available from: https://www.gov.uk/employment-contracts-and-conditions/overview
  1. 3 Make a claim to an employment tribunal - GOV.UK [Internet]. Gov.uk. 2016 [cited 11 December 2016]. Available from: https://www.gov.uk/employment-tribunals/make-a-claim
  1. 4 Acas code of practice [Internet]. ACAS. 2016 [cited 11 December 2016]. Available from: http://www.acas.org.uk/media/pdf/f/m/Acas-Code-of-Practice-1-on-disciplinary-and-grievance-procedures.pdf

 

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