Constructive Dismissals: FAQ's
What is a constructive dismissal?
Constructive dismissal occurs when an employee resigns in response to a repudiatory or fundamental breach of contract by the employer. An employee cannot resign and successfully claim constructive dismissal unless the breach is fundamental. If there is a fundamental breach of contract which would entitle an employee to resign then the resignation must take place fairly promptly, as any delay may be taken as an acceptance or affirmation of the breach.
Can I resign and claim constructive unfair dismissal?
If you resign you would have to prove that it wasn't just a simple resignation, but that you had been constructively dismissed. It is important to note that a constructive dismissal may not necessarily be unfair, as the Tribunal will still have to consider whether the employer acted reasonably. (Please see our unfair dismissal page for "when is a dismissal unfair?)
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?
We cannot 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 constructive unfair dismissal until we have considered your case in detail. If you are successful in establishing that you have been constructively dismissed, the tribunal would then go on to consider the fairness or otherwise of your 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. If you have already decided to resign then you should state clearly in your resignation letter that your resignation is in response to your employer's fundamental breach and not for any other reason. If you have already resigned, you should raise a grievance informing your employer why you resigned and contact us as soon as possible if you wish to pursue an unfair dismissal claim..
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 may be quite modest.
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. *
Constructive dismissal claims are subject to the same strict time limits as unfair dismissal claims. Do not delay in making a claim. *
*For more detailed information please refer to our Unfair Dismissal page.
Do you deal with constructive dismissal claim on a 'no win no fee' basis?
As a general rule we do not take constructive dismissal claims on a No Win No Fee basis. However, if you require information or advice about other forms of funding which may be available then please contact us - we will be happy to discuss the options with you.
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