What is Constructive Dismissal?
Posted on 5th December 2023 at 12:23
Constructive Dismissal is a situation where an employee resigns in response to their employer breaching contract, creating an untenable working environment. Whilst the employee resigns voluntarily, it is considered a form of unfair dismissal, as it is brought about by the employer's actions or omissions that make continued employment intolerable.
To constitute constructive dismissal, the following elements generally need to be present:
Breach of Contract
There must be a fundamental breach of the employment contract by the employer. This breach could be related to a specific term in the contract or a breach of the implied term of trust and confidence. Examples of breaches might include demotion, unilateral changes to working conditions, harassment, or non-payment of wages.
Resignation
The employee must resign as a direct result of the employer's breach. It's important that the employee resigns promptly in response to the breach and does not continue to work under the new conditions. If they continue to work under the altered terms for an extended period, they may lose their right to claim constructive dismissal.
Fundamental Breach
The breach by the employer must be a fundamental one, making it impossible for the employee to continue working in their current role. It should go beyond minor or trivial breaches of the employment contract.
No Alternative
The employee must have no reasonable alternative but to resign because of the employer's breach. It is important that the employee can demonstrate that they exhausted other avenues, such as attempting to resolve the issue through internal grievance procedures, before resigning.
Quick Action
The employee must act promptly in resigning after the breach occurs, and they should clearly communicate the reasons for their resignation to the employer.
Not All Cases Succeed
It's worth noting that not all claims for constructive dismissal succeed. The legal threshold is high, and the circumstances must meet the criteria established by case law. Each case is assessed on its merits.
If an employment tribunal finds that constructive dismissal has occurred, it is treated similarly to unfair dismissal, and the employee may be entitled to compensation. However, constructive dismissal claims can be legally complex, and it's essential for employees considering such claims to seek legal advice from a solicitor experienced in Employment Law. It's also worth exploring other options for resolution, such as attempting to resolve issues with the employer through internal procedures or seeking advice from an employment agency like ACAS (the Advisory, Conciliation, and Arbitration Service).
Tagged as: Employment Law
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