Constructive dismissal occurs when your employer has committed a serious breach of contract, forcing you, an employee, to end your employment against your will because of your employer’s conduct. You are therefore entitled to resign without unreasonable delay in response to the conduct and treat yourself as having been dismissed.
What amounts to Constructive Dismissal?
In accordance with the Employment Rights Act 1996, there are three elements that must be present to prove constructive dismissal:
a. Your employer is in serious breach of your employment contract;
b. You resigned as a result of the breach; and
c. You have not acted in a way in which could be taken as waiving and therefore accepting the breach.
It is not enough to show that your employer has behaved unreasonably. However, whilst a breach can be of the implied term of trust and confidence, a fundamental breach of any of the express or implied terms of a contract of employment is sufficient.
Your employer’s breach of contract may be one serious incident, a series of incidents, or a continuing pattern of behaviour that are serious when taken together, even though they may not in isolation. However, the “last straw” which leads you to resign must contribute to the previous acts, so that collectively they all add up to a breach of trust and confidence.
Have I been Constructively Dismissed?
It may be relatively straightforward for you to prove that your employer has breached your employment contract; but it is much more difficult to prove breaches of trust and confidence. The courts have found the following breaches of contract, albeit non-exhaustive, to be sufficiently serious to entitle employees to resign and claim constructive dismissal:
a. Reduction in pay;
b. Changes in duties, hours or location;
c. Harassment or intolerable behaviour;
d. Stress at work that has not been properly addressed; or
e. Failing to make reasonable adjustments where you have a disability.
Ultimately, each case depends on its own facts so the possibility of potential breaches are endless especially if your employer has acted in bad faith.
Can I make a claim for Constructive Dismissal against my employer?
You may make a claim for constructive dismissal at the Employment Tribunal Service if you have been continuously employed with the same employer for a period of less than 2 years.
you can provide evidence that your employer has acted in a way that makes your position untenable and goes to the root of your employment relationship, your claim may well succeed. Crucially, the onus is on you to prove that your employer was in breach.
Lodging a formal grievance
Before resigning, it is recommended that you lodge a formal grievance against your employer because it gives your employer an opportunity to resolve the dispute. Failure to lodge a grievance before resigning also means an employment tribunal can reduce any damages you are awarded by up to 25%. And if a grievance is lodged and your employer does not deal with your grievance, your compensation could increase by up to 25%.
Lodging a grievance is also an important consideration if you choose to settle the matter with your employer through negotiations before your Employment Tribunal hearing, with a settlement financial lump sum and a job reference, which could be a far more preferable outcome.
If you do have a case for constructive dismissal, you should leave your job immediately because your employer may argue that by staying, you have waived any breach and therefore accepted the conduct. A waiver could also be anything else which signals an acceptance of the breach, such as an email which says you are happy with changes to your contract.
Bringing a claim at the Employment Tribunal
The process for claiming constructive dismissal should commence within a period of 3 months , less 1 day from the date you have left employment as a result of the way you are being treated by your employer.
Even though you can resign and claim constructive dismissal due to your employer’s conduct, your employer could argue that breach of contract was done as a result of reorganisation of the business. In this case, the chances are that your employer will be given the benefit of doubt because the Employment Tribunal Service would most likely not interfere with the management and operation of a business.
Reaching a settlement with your employer
If you are threatened with dismissal or are dismissed, you can get help from an Employment Solicitor to solve the dispute by mediation, conciliation or arbitration. You can also speak to your union representative if you are a member of a trade union. If are unable to solve the problem between you and your employer by mediation, conciliation or arbitration, you can then proceed go to make a claim at the Employment Tribunal. However before you Employment Tribunal hearing date you and your former employer can agree a settlement of your case, meaning that your case is not heard at Employment Tribunal.
If you need to get further advice regarding constructive dismissal, you can speak to a Solicitor online on Talk2Solicitors.co.uk to get the legal advice that you need.