Constructive Dismissals: FAQ's

I think that I might have a claim for constructive dismissal but am not entirely certain about what constructive dismissal is.  Can you explain? 

Put simply, if you have resigned from your employment because of the way you feel you have been treated, the law allows you to treat this resignation as a dismissal for the purpose of bringing an unfair dismissal claim.

So, if my employer is giving me a hard time, I should resign and I can claim unfair dismissal? 

It is not that simple. You will first have to prove that, rather than simply resign, you have been constructively dismissed. That means that your employer has to have fundamentally breached your contract of employment or severely damaged if not destroyed the working relationship. In addition, you must resign in response to that but you cannot delay for too long.

My employer is making life very difficult for me and I feel that I cannot work with him any longer.  Surely I have a case for constructive dismissal. 

Again, it is not certain. Whether the employment relationship with your employer has been destroyed or severely damaged is measured objectively, that is, an employment tribunal would determine whether your employer's conduct was capable of destroying the relationship, not whether you felt it had.

Well what about the situation where my employer changes my job without asking me? 

This is likely to be clearer than whether the employer damaged your relationship since it is based on the terms of the contract.  You should be clear that any change in your contract has to be a change of a fundamental term before you would be entitled to resign.

I have thought about it and I consider that there may be a case for constructive dismissal if I resign.  Can you confirm whether I should resign and whether I would have a strong claim? 

No.  We would never advise anybody to resign from their employment. That is a decision entirely for you to be based on many factors, the main one presumably being whether you feel you can be expected to face another day working for your employer. We cannot tell you that.

Neither is it possible to advise whether you would have a good claim for unfair dismissal.  Until you resign, we cannot be clear on whether you could be treated as dismissed - this depends on the content and the timing of your resignation letter. Further, even if you establish that you were constructively dismissed, you may not succeed in an unfair dismissal claim.  Your employer can claim that it was for a fair reason (for example business restructuring in the case where your contract has been changed) and that they acted reasonably in all the circumstances. Without knowing how your employer would defend a claim, we could not comment on the fairness of a constructive dismissal.

Should I resign and then come to you for advice? 

You should first raise a grievance with your employer outlining why you are considering resigning.  Once this has been dealt with, if it is dealt with, you should consider what you wish to do. If you have already resigned, you should raise a grievance informing your employer why you resigned.

If you feel that you had no choice but to resign and wish to pursue an unfair dismissal claim, you should contact us on 01925 650 151.

Can I claim damages for all the treatment I have had to endure? 

No.The only claim you have (unless there is an element of discrimination involved) is for unfair dismissal and the compensation you would be awarded is largely made up of loss of earnings.  If you start another job soon after your constructive dismissal and you earn the same amount of money, your loss and potential claim would be quite small. 

Is there anything else I should take into consideration? 

Unfair dismissal claims are only available (in most cases) for those employees that have one year's service with their employer. Therefore if you have not had a year's service, you would not be eligible to claim constructive dismissal.

Do you deal with constructive dismissal claim on a 'no win no fee' basis? 

In most cases, because of the large number of difficulties involved (which is not to say that it is impossible to succeed in a constructive dismissal claim), we would not be able to offer 'no win no fee' funding.  We would provide an initial assessment of a claim for a fixed fee and you should ring 01925 650 151 for more details.