CONSTRUCTIVE DISMISSAL
Find out whether you have, or could have, a claim for constructive dismissal
Understand your options so that you can make the best decisions for you
Support throughout your claim to make the process simple
Clear advice in plain English - no confusing legal jargon
MAKING A CLAIM OF CONSTRUCTIVE DISMISSAL
Constructive dismissal happens where your employer fundamentally breaches your contract of employment, causing you resign in response to that breach.
As the employee, you must prove that the employer’s conduct was serious enough to entitle you to leave immediately.
A claim for constructive dismissal is not about the fairness of your employer’s conduct or its unreasonableness. It is about whether your employer broke an important term of your employment contract. The fairness of your employer’s conduct may have a part to play in deciding whether a breach has occurred.
If your employer has actually dismissed you but you feel you have been badly treated, you should consider whether you have a claim for unfair dismissal or wrongful dismissal.
There must be a breach of the employee’s contract.
The breach must be sufficiently serious to justify the employee leaving or it must be the last in a series of events which, cumulatively, entitle the employee to resign.
The employee must leave in response to the breach and not for an unconnected reason.
There must not be a significant delay between the employee’s resignation and the breach otherwise the employee will be treated as having waived the breach.
In most cases an employee can only make a claim of constructive dismissal if they have worked for their employer for two years’ in continuous employment. There are exceptions, for example if the breach of contract is because of discriminatory behaviour.
BREACH OF THE CONTRACT OF EMPLOYMENT
It is not necessary for the employee to have a written contract to make a claim of constructive dismissal. If an employee is employed then a contract exists whether its terms are written down or not. Any terms that aren’t expressly agreed in writing may be implied by law. For example, a term that an employee will be paid for the work for which he or she is employed (and has carried out) will always exist, even if it hasn’t been put into writing.
Whether an employee relies on an express or implied term, the breach must be serious. The legislation that creates the right to claim constructive dismissal, s.95 (2) (c) of the Employment Rights Act 1996 says that the employer’s conduct must be such that the employee is entitled to leave immediately without giving notice (which contractually the employee is usually required to do).
Put another way, the employee is allowed to break his or her contract by not giving notice because the employer has behaved so poorly. Notice may be given by the employee; the employee may want or need to give and work notice for financial reasons. The key question is whether the breach of contract would justify immediate resignation.
The breach must be sufficiently serious to justify the employee resigning. A minor or trivial breach is not enough.
Breach of contract may be caused by a single incident. It may also happen where there are a series of acts or a course of conduct over time which cumulatively amount to a serious breach of contract.
Most constructive dismissal cases are concerned not with an explicit or express term of the employee’s contract but an implied term of some kind. Implied terms are those that exist in a contract but are not written into the contract.
In constructive dismissal cases the implied term that employees most often rely on is a term which creates an obligation of trust and confidence between the employer and the employee. It is well established that such a term is present in every employment contract. An employer can break this contractual term by, without reasonable and proper cause, acting in a way calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee.
THE EMPLOYEES RESIGNATION
If an employee leaves for a reason other than the employer’s breach of contract, there is no constructive dismissal. However, it isn’t necessary for the breach of contract to be the only reason for your resignation. You may have mixed reasons.
For instance, if your employer has broken your contract and this caused you to accept another job, you may still have a claim for constructive dismissal. Your employer's conduct has to be part of the reason you resign, but it doesn’t have to be the sole reason.
If you delay resigning, there is a risk that you will be deemed to have 'waived the breach' or, in plain language, agreed to put up with it. In this case, the breach may be considered to have become part of your contract. This is sometimes known as affirming the contract.
It’s difficult to say how long a delay will amount to acceptance of the breach. An employee will be allowed some time to consider their position before the right to take action is lost. Each case depends on its own facts so the best that can be said is that the employee shouldn’t wait too long before resigning if he or she wants to make a claim of constructive dismissal.
EXAMPLES OF CONSTRUCTIVE DISMISSAL
There are a considerable number of ways in which an employer might seriously breach a contract of employment. It is necessary to analyse the facts of each case and apply to those facts the principles of constructive dismissal before concluding that constructive dismissal may have occurred. Please note the bullet points below are examples only. Every case is different and a decision in a previous case on its particular facts does not bind a judge in another case, though it may be helpful as guidance.
employer unilaterally reducing pay
employer unilaterally changing the employee’s job duties
employee being ordered to work hours he or she hadn’t contractually agreed to work
employer requiring employee to work more than a reasonable distance from home without there being a clause in the contract obliging the employee to travel
false accusations of dishonesty
serious breach of disciplinary and grievance procedures by the employer
sexual harassment
discriminatory acts
COMPENSATION FOR CONSTRUCTIVE DISMISSAL
If a successful claim is made, compensation will be awarded based on the employee’s financial loss caused by the constructive dismissal.
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Address: Spencer Shaw Solicitors Limited
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Harborne, Birmingham, B17 0DH
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