When does ‘quiet firing’ become constructive dismissal?

HR Magazine defines ‘quiet firing’ as employers doing “the bare minimum for an employee with the intention of forcing them out of the company.” But behaving in a way that will cause your employee to resign sounds a lot like constructive dismissal. So where is the line, and what are your options if you suspect your employer is trying to ‘quietly fire’ you? 

 

 

Constructive dismissal happens when your employer fundamentally breaches your contract of employment, causing you resign in response. You must prove that your 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, but whether your employer broke an important term written or implied in your contract. The implied term most often relied on is an obligation of trust and confidence between the employer and the employee. This is implied into every employment contract. Here fairness may be part of the consideration as to whether behaviour broke the trust in your relationship, or whether it was justified. 

 

According to HR Magazine, examples of quiet firing include “passing employees over for promotions, raises, or supplying them with vague feedback which doesn't help their development.” While quiet firing is not best practice for employers, it does not necessarily give you a legal claim against your employer. Doing the ‘bare minimum’ is still meeting the legal minimum standard. 

 

To claim constructive dismissal, you would need to show that your employer’s actions breach your employment contract, and that the breach was serious enough to justify leaving in response. Among the examples listed by HR Magazine, some are clear breaches of contract – for example, denying you a raise or bonus that is part of your employment contract. Another example of a clear breach might be changing your duties or hours where there is no clause in your contract allowing such changes. It is possible that this breach is serious enough to justify resignation but would depend upon individual circumstances. 

 

Breaking the implied clause of trust and confidence is more difficult to define, as relationships between employee and employer differ from workplace to workplace. What is normal in one may be unacceptable in another. Examples could include your employer breaching disciplinary and grievance procedures or making false accusations. Here you would need to prove that the behaviour breached the obligation of trust, and that the breach was serious enough to justify resigning. 

 

 

You cannot claim breach of contract against your employer in the employment tribunal while you are still working for them. You may be able to do so in the civil courts. However, where the breach is minor and your losses are small, the cost of instructing a solicitor may outweigh any damages you are awarded. We would recommend trying to resolve the matter directly with your employer.  

 

A claim for constructive dismissal can only be brought once employment has ended. 

 

 

If you think your employer may be treating you poorly because of a protected characteristic, you could have a claim for discrimination. You would not need to show a breach of contract, just that you have been treated less favourably because of a protected characteristic. This could include being passed over for promotion or given limited opportunities for development. You would need to show that the less favourable treatment was related to your protected characteristic – for example, you may be able to show that employees of another race or sex are provided more opportunities, or that the treatment started when you returned from maternity leave or declared a philosophical belief. 

 

You might feel that your employer is responding to poor performance or other problems with your work. But they should have official measures in place, such as performance improvement plans or disciplinaries. You won’t have a standalone claim against your employer for failing to follow the correct procedures, but if your employer later decides to dismiss you it may be procedurally unfair. 

 

 

Unfortunately, not all poor treatment is unlawful treatment and there may be times when you have been treated badly but don’t have a legal claim. In these cases, your options are to try and resolve the dispute, accept the treatment, or to move on. 

 

Follow your employer’s processes, approach HR to help resolve the matter, and avoid giving your employer any ammunition to dismiss you. But if that still doesn’t work, you might be best to start looking for jobs with a better employer.