Constructive Dismissal

Constructive dismissal occurs when an employer has committed a serious breach of contract which entitles the employee to resign from their position in response. The employee is entitled to act as though they have been dismissed.

It is not enough to just show that your employer has behaved unreasonably. You must show there has been a fundamental breach of either a contractual term or the implied term of “trust and confidence”. As well as this, you must have resigned from your position because of the breach. You should also make it clear that you regard yourself having been constructively dismissed.

It may not be a single event that amounts to a breach of contract. It can be a continuous pattern of behaviour, such as bullying or harassment, that amounts to a breach. It does not matter if the “last straw” is a minor act, as long as it is enough, when combined with a series of previous incidents, to amount to a fundamental breach.

Examples of a breach of contract by an employer that allows an employee to claim constructive dismissal can include:

  • Forced reduction of salary, including the threat of reduction
  • Demotion not permitted in the contract of employment
  • Unfounded allegations of poor performance
  • Unreasonable conduct in disciplinary proceedings
  • Harassment or bullying
  • An unsafe working environment
  • Failure to make reasonable adjustments for the disabled
  • Breach of health and safety laws

What Is the Difference Between Constructive and Unfair Dismissal?

In a claim for constructive unfair dismissal the burden of proof rests with the employee and this needs to be proved in an employment tribunal following an incident or a series of incidents where an employee is forced to resign in response to the employer’s conduct.

A claim for unfair dismissal is where the employer has actually carried out the act of dismissing the employee and the dismissal has not been conducted in a fair way.

How Can I Make a Claim for Constructive Dismissal?

To make a claim for constructive dismissal, you must have been continuously employed by the employer for a period of two years. This is unless your case falls within one of a few exceptions, for example, it relates to discrimination, trade union membership, or health and safety.

Any claim must be brought within specific time scales and a delay in bringing a claim may result in the claim being time barred. It is thus important to see legal advice promptly when a dispute arises.

It is also highly advised to seek early professional legal advice as you may significantly harm your position if you resign with the belief you have a good case when you do not. It may be better to not resign if you are looking to make a claim or seek a negotiated settlement. Our friendly and highly regarded employment solicitors can advise you on your best course of action.

Lodging a Grievance

It is expected under the ACAS code of practice than an employee lodges a formal grievance against an employer before they take any steps to resign. This is so the employer has the opportunity to resolve the issue. Failure to lodge a grievance before resigning means an employment tribunal may reduce any damages awarded to you by up to 25%.

Exit Negotiation

There may be the option of securing a negotiated exit with your employer. If you have a good legal basis for a constructive dismissal claim, instead of bringing a tribunal claim, you may wish to negotiate a lump sum financial package in return for giving up your employment rights.

If you wish to negotiate an exit with your employer, it is advised to seek legal representation. This ensures you do not put your settlement at risk. Our highly experienced employment team pride themselves in seeking the best possible outcome for our client’s personal situations.

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