What is constructive dismissal and do you have a case?
What is constructive dismissal? How you can deal with the consequences of what can be a very stressful situation? Karron Foot an experienced solicitor in our dispute resolution team explains.
What is constructive dismissal?
Put simply; this is when an employee is forced to leave their job because of their employer’s behaviour. Where the employer has committed a serious breach of contract that allows the employee to resign in response to the employer’s conduct. The employee is entitled to treat him/herself as having been dismissed and the employer’s conduct is often referred to as a “repudiatory breach” of the employment contract. Bad behaviours do not necessarily mean constructive dismissal. You need to know exactly what could be regarded as contributing to constructive dismissal, and what doesn’t.
Who can claim constructive dismissal?
Constructive dismissal is not a claim in itself. Employees who have been employed by their employer for two years or more can make a claim for unfair dismissal. This two-year timeline includes your statutory notice period. In order to make a claim for unfair dismissal you have to demonstrate:
- That you have been dismissed; and
- There was no fair reason for the dismissal; or
- A fair procedure was not followed in selecting you for dismissal
If you can demonstrate that you have been constructive dismissed then you will have jumped the first of these hurdles. Due to the nature of a constructive dismissal it is usually the case that there will have not been a fair reason for the dismissal and a fair procedure has not been followed, but this may not always be the case.
The reason for leaving needs to be serious
If you have been forced to leave your job due to any of the following reasons, you may be able to demonstrate that you have been constructively dismissed:
- Your employer refuses to pay for the work you’ve completed
- Your employer took away the benefits your contract entitles you to, without explanation
- You’ve brought a grievance to your employer’s attention, and they’ve refused to investigate
- Your employer forced you to undertake an excessive workload
- You were demoted without explanation
- You weren’t provided with a safe working environment
- Accepting extreme changes to your work was made compulsory. Typical examples of this include undertaking night shifts contrary to a standard 9am-5pm contract or making you work excessive hours, etc.
- Your employer condones and/or encourages bullying.
In some cases, your employer might have broken your employment contract with a series of incidents that, when viewed together, make things more serious. Out of all the above options, this is the most difficult to prove.
To successfully show that you have been constructively dismissed, you need to provide evidence of a specific breach of contract. For example, threatening text messages, samples of your completed work, bank statements reflecting your change in pay, etc. So, before you think about claiming constructive dismissal, make sure you have the evidence to back your claim up.
What constitutes a fair change in work?
Your employer is entitled to make reasonable changes to your work. For example:
- Implementing something your contract explicitly talks about i.e. change of location
- Consulting you before making any changes that directly impact you
- Making changes as a last resort, as an alternative to something much worse. i.e., laying off staff.
If you think you have a claim, what should you do?
Before moving forward try to resolve any issues by courteously speaking to your employer. A simple discussion with your line manager might be all that is needed to put things straight.
If there’s no improvement, and you firmly believe your employer has breached a fundamental term of your contract of employment, you need to leave your job without further notice and state that you consider that you have been constructively dismissed. This might sound drastic, but it’s necessary. This is especially true if you don’t feel safe at work, or if you’re frightened to enter the office. However, we would strongly recommend that you take legal advice before leaving your job.
Unfortunately, if you stay and put up with your ill-treatment, your employer can argue you accepted their offensive conduct. Similarly, if you resign but work out your notice your employer can argue that you have affirmed your employment contract and it would be difficult to bring a claim.
Don’t forget discrimination
Discrimination can occasionally play a role in this kind of claim. This also constitutes an irreparable break in your employment contract.
If you believe your mistreatment stems from one or more of the following, it might fall under the term, ‘discrimination’:
- Your race or ethnicity
- Your marital status
- Your sexuality
- Your religion
- Your gender
- Your age
- A disability you’re suffering from
The two-year limit doesn’t apply to employees who are victims of discrimination.
Is it worth making a claim?
Put simply, it all depends. Typically, constructive dismissal claims can be hard to prove. The behaviour of your employer also needs to be so bad that you are entitled to treat yourself as having been dismissed. This can make them difficult to win. When it comes to analysing whether it’s worth going to tribunal, weigh up how much money you are likely to get if you win is usually a good indicator of whether the process is worth your time and effort. You should also take into account any likely legal costs as these are generally not recoverable from your employer in the Employment Tribunal even if your claim succeeds.
Don’t go it alone, seek help from a professional who’ll analyse your case.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.