What is Constructive Dismissal?

Constructive dismissal is where the employer has committed a serious breach of contract which is so serious that the employee is entitled to resign in response to it and to treat such resignation as dismissal.

It is not enough just to show that the employer has behaved unreasonably or unfairly. Their behaviour must represent a fundamental breach of an express term in the contract between them or an implied term of trust and confidence. The resignation must be as a result of the breach by the employer not for any other reason. It should also be made clear, by the employee at the time, that they consider themselves to have been constructively dismissed.

Examples of breaches of contract by an employer entitling an employee to claim constructive dismissal include:

  • A unilateral significant reduction or the threat of a reduction of your salary
  • Demotion without good reason or in breach of contract
  • Unfounded allegations of poor performance
  • Manifestly unreasonable disciplinary proceedings
  • A complete change in the nature of your job
  • Bullying or harassment
  • Stress or overwork that has not been properly addressed
  • Failing to make reasonable adjustments for a disability
  • Forcing staff to work in breach of health and safety laws

What is the difference between constructive and unfair dismissal?

Constructive dismissal is where you are forced to resign in response to your employer’s conduct. Unfair dismissal arises where you have been sacked in a way that is unlawful. This is usually because either one of the 5 fair reasons for dismissal do not apply, or there has been a failure of process, or it is not reasonable for you to have been dismissed.

How easy is it to make a claim for constructive dismissal?

You must have been continuously employed with the same employer for a period of 2 years in order to bring a claim. This is unless your case falls within one of the few exceptions where no minimum service is required, for example, where it relates to discrimination.

If you can show that your employer has acted in a way that makes your position untenable and goes to the root of your employment relationship, then your claim may succeed.  The onus is, however, on you to prove that your employer was in breach. This differs from unfair dismissal claims where it is for your employer to prove that there had been a fair dismissal.

What to do

It is always best to obtain early professional advice, as you may significantly prejudice your position if you resign in the belief that you have a good case, when you don’t. It is also far better, for tactical reasons, not to resign if you are looking to make any form of claim or are seeking a negotiated settlement.

For an initial discussion please contact any of our offices or send us a message using the contact form on the right of this page and we will get back to you as soon as possible.

For your convenience, we offer meetings in any of our three offices or virtual meetings online, to save on travel time.

 

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