Constructive dismissal is when an employee, instead of being formally dismissed by his employer, is rather forced to resign from his job due to a poor behaviour on the part of the employer. To pursue a claim for constructive dismissal, it is important that the employee demonstrates that:
- There was a serious breach of contract committed by employer
- The said breach was not accepted
- The employee felt forced to resign due to the said breach
A constructive dismissal is considered to be committed when a serious breach of contract happens that forces the employee to resign due to a poor conduct by their employer. The employee is hence entitled to consider them being dismissed and the conduct of employer is called a repudiatory breach.
Here are some examples of a serious breach of contract which are commonly seen in organisations in the UK in the context of constructive dismissal:
- A unilateral pay cut in the employee’s pay which includes fringe benefits and overtime. The employer may also delay payments unnecessarily or fail to pay the employee.
- The employer makes changes in employee’s working hours, place of work or job duties
- An arbitrary demotion to a lesser role without a valid justification
- The employer creates situations where it is impossible to perform effectively
- The employer fails to give a reasonable support to the employee to carry out his job duties without being bullied or harassed by colleagues
- Forcing the employee to work in conditions where health and safety regulations are not in place
- There is a breach of mutual trust and confidence as implied in the employment contract.
What is a serious breach of trust and confidence in context to constructive dismissal?
The term duty means that both employer and the employee must not conduct in a manner which is likely to destroy, or permanently damage, the relationship of trust and confidence between them, especially without a reasonable cause for the same. This is one of the most common breaches claimed by employees when filing a claim for constructive dismissal.
It is also important to understand, if the employee is involved in a breach of contract himself, even if the employer is unaware of the same, he cannot claim for a constructive dismissal.
For an employee, to make a claim for constructive dismissal, it is not enough to prove an unreasonable behaviour by the employer, it is important that they are able to demonstrate a breach of an ‘expressed’ term in their employment contract, such as trust and confidence. It is also important that the breach should be the reason why the employee left the organisation. It is suggested, that when any employee resigns from the job, they must make it clear that they regard themselves to be dismissed constructively.
Having said that, when filing for a constructive dismissal, the employer must be careful to not waive the breach. This often happens in case of long delays in resigning due to an employer’s breach. There must be no action that signifies acceptance of breach. A common example for the same is when an employee takes a long medical leave after the said breach and before resigning them claim for a constructive dismissal.
It is important to understand that it may not just be one incidence, which leads to a breach by your employer causing the employee to leave and make a tribunal claim for constructive dismissal. More often than not, it is a continuous pattern of incidents and actions which as a whole amount to a breach of agreement.
In such incidents, previous breaches, which may have been considered to be accepted by employees should not be treated as waived, or accepted, but also a part of continuous misconduct.
What is a last straw?
There are instances where the final incidence in the series of behaviour towards the employee is not very serious when taken as one single incident, but overall, it amounts to a repudiatory breach. When claiming for a constructive dismissal, this is often known as the “last straw”.
In UK, no win no fee Employment Law Solicitors can assist you to file constructive dismissal claim in employment tribunal. Consult your case with them and get legal assistance.