Constructive Dismissal
If you’re reading this, then it’s likely that things have been very unpleasant for you recently at work. This is a tough time. However, if you feel that you had, or have, no alternative but to resign because of the way your employer has treated you, then this may amount to unfair or constructive dismissal. So read on…
First things first…
First off, it helps to know that constructive dismissal is actually a category of unfair dismissal. However, it does have its own specific nuances…
So… what is constructive dismissal?
Well, there are four elements to a constructive dismissal claim. These are:
- There has to be a breach of contract by the employer. This can be actual or anticipatory. The breach can be breach of an express term (e.g. pay) or breach of an implied term (an implied term being something that is not always in writing but is still part of your contract, e.g. the implied term of mutual trust and confidence to the effect that both parties behave in such a way as to not damage the relationship they have; bullying and/or harassment by an employer is a common example).
- The breach must either be sufficiently important to justify the employee resigning, or be the last in a series of incidents that justify leaving.
- The employee must leave in response to the breach and not for some unconnected reason.
- The employee must resign promptly.
How does constructive dismissal differ from a straight unfair dismissal claim?
With an unfair dismissal claim, the employer has to prove that the dismissal was fair. However, with a constructive dismissal claim, the onus is on you to prove that you had no choice but to resign from your job. And moreover, you have to:
- Prove that the breach was a fundamental one and not a minor one; and
- Prove that your resignation was due to this breach
What steps should I take initially?
You would not be barred from bringing a claim for constructive unfair dismissal without having raised a grievance with your employer beforehand, however we would recommend that you do so if you can. This is because if you do not and instead go straight to a tribunal with your claim, any compensation awarded to you can be reduced by up to 25%.
You should note that the time limit for bringing a claim of constructive unfair dismissal is 3 months from the effective date of termination of your employment. Ideally, though, you should not leave it to the last minute and instead submit your claim as soon as possible. This, by the way, is irrespective of whether or not your grievance is still ongoing when the 3 months’ time limit is due to expire, because it’s critical you don’t miss the deadline for lodging your claim. If you try to make a claim beyond 3 months, the tribunal may consider that you’d accepted the breach and your claim will then be unsuccessful.
What should I do now?
If you require assistance in raising a grievance, or have already done so and wish to take the matter to tribunal, then take advice as soon as possible. We offer a free initial telephone consultation, so contact us now on 0800 304 7254.
