Has your employer committed a serious breach of your employment contract?Has there been a failure to prevent bullying and harassment at work?
Has your job become unworkable or are you finding it impossible to go to work?
These problems are not uncommon. The answer often lies in talking to your employer and trying to resolve matters. Early constructive discussions can work wonders. Take a look at the situation from a different perspective. However, what happens if this does not work or if matters are more serious?What is constructive dismissal?
This is the term used where an employee resigns in response to their employer’s behaviour or that of other employees in the workplace. The behaviour must amount to a serious or fundamental breach of contract or the “implied duty of trust and confidence”. If this has happened to you, you may be entitled to treat yourself as having been “dismissed”.
For your constructive dismissal claim to succeed, you will need to show that:Your employer has been in serious breach of your employment contract or the implied duty of trust and confidence;You have resigned as a result of that breach; andYou have not affirmed the contract following on from the breach (e.g. by delaying your resignation).Examples of constructive dismissal
Here are some examples of serious breaches of contract committed by employers which have lead employees to resign and treat themselves as constructively dismissed:A reduction in pay or commission without the employee’s agreement;Removal of contractual benefits
Putting an employee of “garden leave” without a contractual right to do soSending out a defamatory press release and “bad mouthing” a fellow board directorFailure to give the employee reasonable redress through a grievance procedure;Discriminating against athe employee;Demotion for no proper business reason;Exposing the employee to violence or bullying;Exposing the employee to health and safety risk;Serious lack of support or overwork;Should I bring a claim for constructive dismissal?
You should consider matters carefully. These claims tend to be quite difficult to establish at an employment tribunal. There is often a series of events leading to a decision to resign and tribunals have to assess the overall quality of the employer’s behaviour and whether, in essence, it indicates that the employer was no longer prepared to be bound by the employment contract. A series of relatively trivial matters will not do, no matter how long they have gone on for.
It can be a very rocky road to follow. The employer can challenge your motives in resigning and can argue that other reasons were at play. Your own conduct and behaviour can and often will be taken into account. Unless there is a good reason not to, you will be expected to have tried to resolve matters with your employer first, often by using their grievance procedure.
Constructive dismissal claims can sometimes be linked to restrictive covenant disputes. If the employer is found to have been in serious breach of contract towards an employee and this breach is “accepted” by an employee resigning, then the employment contract is at an end. This means that any contractual protection in favour of the employer can “fall away” including any restrictive covenants. This often arises in cases where an employee wishes to resign and join a competitor in situations where there has been some element of poor treatment by an employer or where there may be an argument that the employer is in breach of contract towards the employee. As an employee, you may be able to take tactical advantage of this situation.
It goes without saying that in order to bring this type of claim, an employee must resign their employment. This is obviously a big step for most people and not one to be entered into lightly. In most cases, there is also a financial limit or a “cap” on the amount of compensation that can be awarded. Compensation is based upon any loss of earnings and you will need to give credit for any post resignation earnings in a new job. You must take reasonable steps to obtain further employment so as to “mitigate your losses”.
A claim for constructive dismissal needs to be lodged at the Employment Tribunal within three months of the date of the termination of your employment (normally the date on which your resignation takes effect) so you will need to act swiftly.
Disclaimer – The contents of this page are provided for general guidance only and do not replace the need to obtain legal advice about any given situation.