Sometimes, an employee resigns from his/her employment because of the employer’s conduct towards him/her. This is called constructive dismissal and the law treats the resignation as a dismissal if the employer’s conduct was a fundamental breach of contract.
As a general rule, in order to succeed in a claim for constructive (unfair) dismissal, the employee must show that he/she resigned in response to a fundamental breach of contract by the employer. This breach can be a fundamental one such as refusal to pay wages or alternatively a series of smaller ones with a final incident that ‘breaks the camel’s back’ and prompts a resignation.
The burden of proof is on the employee to show that he/she resigned in response to a breach of contract so fundamental that he/she could not have been expected to continue working there any more.
The employee must resign immediately and must not delay unreasonably, such that in Law he/she will be taken to have accepted the breach. As a rule of thumb, an employee should normally resign within about a week, although circumstances can vary enormously.
What amounts to a constructive dismissal is complex. Anybody contemplating resigning from their job because of their employer’s conduct towards them should seek expert advice before taking any such action.
The key elements of a constructive dismissal are:
- That there was a fundamental breach of contract on the part of the employer
- That the employee resigns in consequence of that breach and not another reason
- That the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal
Examples of conduct that has lead to a finding of Constructive Dismissal:
- Not supporting managers in difficult work situations
- Excessive disciplining of employees
- Changing an employee’s job content or terms
- Harassing or humiliating staff, particularly in front of other less senior staff