Constructive Unfair Dismissal

Constructive unfair dismissal occurs when employees are forced to leave their job because of their employer’s breach of contract which may relate to its conduct or behaviour in the workplace. There are many reasons why employees choose to resign, they may feel like they have been harassed or treated unfairly by their employer or other employees, thus forcing them to resign. In circumstances such as this, the employee may be able to claim for constructive dismissal.

The employer may be in fundamental or serious breach of contract for many reasons. If the employer suddenly decides to make substantial alterations to an employee’s contract of employment, such as reduced pay, withdrawal of private benefits, removal of a company car or forcing an employee to work night shifts despite the fact that the employee’s contract is for day work only; then you may decide that ‘dismissing’ yourself is the only option.

On the other hand, an employee may have grounds for claiming constructive dismissal when there has been a series of incidents that, when strung together, are very serious. From a series of intimidating emails to unruly behaviour by an employer, nobody should have to put up with such behaviour in their place of work. These matters can be very challenging to handle appropriately, especially if employees have tried their best to discuss and sort out any issues with the employer without coming to a positive resolution.

Like unfair dismissal claims employees require a minimum of two years continuous service before they are eligible to claim for constructive dismissal.

Employees who are successful in bringing a claim for constructive unfair dismissal will usually recover a basic award which is based on their age, the length of service and earnings. This is also combined with added compensation that covers loss of earnings, which is subject to a one-year cap. Before deciding to resign, it’s advised that you seek advice from our specialist employment team as the threshold of proving that the actions of your employer have forced you to resign is high.

When it comes to proving constructive dismissal in a Tribunal, the responsibility rests on the employee. An employer brought before a tribunal will usually argue that there was no fundamental breach of contract and trust and that they did behave in a reasonable manner, in accordance with the contract. By contrast in a straightforward unfair dismissal case, an employer needs to prove the dismissal was fair and legal, according to employment law and the contract.

As the ‘burden of proof’ is on the employee, they need evidence that an employer’s actions were breaching the terms of the contract.

Examples of circumstances that may amount to a breach of contract enabling an employee to leave and claim constructive dismissal include:

• Unexpected reductions in pay, or not being paid when expected, without any reasonable explanation or notice
• A sudden demotion without reason
• Unfair and unfounded allegations of poor performance
• Harassing or bullying at work
• Forcing staff to work in breach of health and safety laws, potentially risking their own health
• A complete change in the work you are undertaking without sufficient notice or training.

Resigning is something that should not be done lightly. If you do feel that your employer is acting in a way which fundamentally erodes the employment relationship, it is important to remember that employees must resign or ‘dismiss’ themselves promptly in the face of the breach. Delay in resigning could result in the employer stating that the employee acquiesced or affirmed the breach. Before resigning, you should seek advice from our specialist employment team to discuss your options.