Employment Law Explained

Constructive Dismissal

Please read in conjunction with the sections on "The New Statutory Grievance procedures" and "Submitting claims to Tribunals - will they reject it?" and "Extension of Time Limits". In essence, you can no longer lodge a constructive dismissal claim to a Tribunal unless you have firstly submitted a grievance to your employer and waited 28 days before lodging the claim. Further, the 3 month time limit will also be extended in certain circumstances.

Sometimes, an employee resigns from his/her employment because of his/her 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