What is Constructive Dismissal?

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Constructive dismissal is where you feel forced to leave your position.

Constructive dismissal refers to a situation where an employee resigns due to a fundamental breach of their employment contract by their employer. This means that the employer has done something that has made it impossible for the employee to continue working for them.

Examples of situations that could lead to successful constructive dismissal claims include:

  • Unreasonable pay cuts, especially without consultation or prior warning
  • Unreasonable changes to working hours or conditions
  • Harassment or bullying
  • Discrimination
  • Failure to investigate a grievance

If an employee believes that they have been constructively dismissed, they may be able to take legal action against their employer. However, it is important to note that there are strict legal requirements that must be met in order to bring a successful claim.

The legal requirements for constructive dismissal

In order to bring a successful claim for constructive dismissal, an employee must show that:

  • They have been employed by the employer for at least two years.
  • The employer has committed a fundamental breach of the employment contract, or there have been a series of breaches that together amount to a fundamental breach.
  • The employee has resigned as a direct result of the breach.

If an employee can show that these requirements have been met, they may be entitled to compensation from their employer. The amount of compensation will depend on various factors, including the employee’s length of service, the severity of the breach and the employee’s losses (such as loss of earnings) caused by the breach.

What steps can employees take if they believe they have been constructively dismissed?

If an employee believes that they have been constructively dismissed, they should first try to resolve the issue with their employer directly. This will usually involve raising a grievance or having a meeting with their manager to seek a resolution to their complaint.

If the issue cannot be resolved informally, the employee may need to take legal action. It is important to seek legal advice as soon as possible, as there are strict time limits for bringing a claim. You usually have to start a claim, or Acas Early Conciliation, within 3 months of the incident you want to complain about.

A specialist employment lawyer will help you to assess your case and advise you on the best course of action. They can also represent you at an employment tribunal if you decide to make a claim.

It can be difficult to prove constructive dismissal.

A word of caution

It is often difficult to succeed in a claim for constructive dismissal – especially where you don’t have any additional claims like discrimination. This is because the burden is on the employee to prove that the employer seriously breached their contract of employment by treating the employee as they did.  All the employer has to do is show that what they did wasn’t all that serious and didn’t destroy the relationship with the employee.

Some cases are clear cut – for instance, if the employee’s manager is physically violent towards them at work, that would usually suffice to amount to a constructive dismissal. Other cases are more tricky – for instance, where the manager was violent to the employee outside of work, at a non-work-related event where they both just happened to be.  The employee would only succeed in that case if there was a clear connection between the violence and work, as they’d need to show that the manager was acting in the course of their employment.  That’s easier where it took place at a work event, but much harder where work had nothing to do with the incident.

Conclusion

Constructive dismissal is a serious matter that can have a significant impact on an employee’s career. Advising employees where they’ve been treated poorly by their employer is part and parcel of what we do. If you believe that you have been constructively dismissed, it is important to seek legal advice as soon as possible.

If you need more help with the subjects covered here, then do reach out to our expert employment law solicitors.  You can speak to our employment solicitors online via email employment@qlaw.co.uk or call us on 03300 020 863.

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