Constructive dismissal advice

Constructive Dismissal

What is Constructive Dismissal?

Constructive dismissal is when an employee argues that he or she has no other choice but to resign because an employer’s or colleague’s conduct or behaviour has lead to a fundamental breach in that employee’s contract of employment.

A breach in a contract of employment which could lead to constructive dismissal which may amount to a “fundamental breach” could be :

  • Demotion of the employee for no apparent reason
  • Withholding an employee’s pay
  • Forcing an employee to work under dangerous conditions
  • Forcing an employee to accept unreasonable changes to their working conditions without that employee’s agreement – This may include making the employee work shifts which are not in their contract
  • Allowing an employee to be harassed and/or bullied by other colleagues

In order to file a case of constructive dismissal against an employer the employee will first have to prove that a serious breach of their employment contract has taken place.

Take Steps to Try to Avoid Resignation

Constructive dismissal is not always easy to prove and the initial burden of proof is on the employee. as with most employment law issues, subject to the level of sheer intolerability and/or effect on a person’s health and wellbeing, it is generally advisable to still seek to resolve the issue, subject to also being aware that it is risky to leave an employer’s breach of contract as is for any period of time, as otherwise the employer may argue that you have waived the breach of contract.

Talk with a Senior Member of Staff

When an employee is suffering a breach of their contract of employment due to either the employer’s conduct or work colleagues’ behaviour the first step to take is to speak to the manager. If this is where the problem lies then the employee should approach a more senior member of staff.

It may be possible that, by discussing the contract breaches with a senior member of staff, the issues in question can be resolved without the need for the employee to resign from their job.

Bring in a Mediator

In some situations mediation can work and may help the employer or colleagues see how unreasonable they are being. Mediation involves a third party being brought in to hear the issues and try to work through them with the employee and employer. However, in many cases it may be felt that the situation has gone too far to be resolved by mediation.

Grievance Procedures

All companies should have a grievance procedure and if talking to the manager or senior member of staff has proved fruitless then the employee should raise the issues in question through the grievance procedure.

In many constructive dismissal cases the employer will more than likely have been required to take this route anyway before filing the case with an employment tribunal.

Employment Tribunal

The last resort for an employee if they have no successful outcome through the grievance procedure is an employment tribunal.

The employee will need to seek legal advice to help put the case together and will need to be able to prove:

  1. That a breach of contract did actually take place
  2. That the employee felt compelled to leave their employment because of that breach
  3. That the employee in no way gave any indication to the employer that they accepted the breach of contract

Once legal advice has been sought and it has been established that the employee has a case for constructive dismissal then the employee should leave his/her job immediately.

If an employee continues to work under the conditions he or she is making a complaint about then the employer may claim that the employer has accepted the breach which could make it harder to bring a case of constructive dismissal against them.

Once the case has been filed with an employment tribunal the employee will need to present all the evidence to the judge who will decide if the case is one of constructive dismissal and, if so, will award the employee compensation based on his/her salary and length of service within the company.

It should be noted that if an employee wants to put in an application for a claim for constructive dismissal they will be required to do so within 3 months of the effective date of dismissal. This is technical term and legal advice should be sought if in doubt. Employment Tribunal deadlines are rigid so you really don’t want to take any chances or leave it to the last minute.

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