You have likely heard of people pursuing claims for ‘unfair dismissal’ but do you know what ‘constructive unfair dismissal’ is and what differences the two have between them? What is constructive dismissal?
Claims for unfair dismissal are where an employee is dismissed unfairly, and they have more than two years of continuous service. Typically, a dismissal is deemed unfair if an employer does not have a fair reason for dismissing an employee and/or a fair process is not followed.
Constructive dismissal typically plays out a little differently in comparison to unfair dismissal and this situation arises when an employee is forced to leave a job against their will (and has no choice but to resign) because of their employer’s conduct.
An employee will usually have the right to make a constructive dismissal claim to an Employment Tribunal if:
- they have an ’employee’ employment status
- they have worked for their employer for a minimum period of 2 years
- they make the claim within 3 months less one day of the date they resigned
The employee must resign as a direct response to a fundamental breach of contract, or the last straw in a series of breaches. Examples includes:
- if an employer didn’t pay an employee or suddenly demoted them for no good reason
- making unreasonable changes to working patterns or place of work without agreement, such as forcing them to work night shifts when they are contracted solely to day work
- if an employer refuses to investigate a grievance or refuses to make changes to account for an employee’s safety in the workplace
- if other employees harassed or bully an employee and their employer takes no action in relation to this
What to Consider
The most important point in respect of constructive dismissal claims is ensuring that the employee can prove that they resigned in response to the breach. For the strongest possible claim, the resignation should be immediate and without notice, and clearly cite the breach in response to which the person resigned. Waiting to resign until you have a new job, means that the reason for your resignation could be the new job, not the breach. Working your notice reaffirms the breach; the argument being that the breach can’t be “that bad” as you continued to work there. Ideally, the resignation should be an immediate decision in response to the issues at work.
We would always advise that an employee obtains advice as quickly as possible before they resign. The reason being, especially in the current circumstances we all find ourselves in with the pandemic, it is vital that an employee ensures that their situation could give rise to a constructive dismissal claim before taking steps to resign. Otherwise, they may be in a situation where they have resigned from a role and have no source of income incoming, nor an employment claim they could potentially pursue.
If an employee believes they have a case for constructive dismissal, they should make notes of any key dates as they will need to rely upon a final straw/final act.
They will then have three months less than one day from the date of resignation to approach Acas. For more information on Acas, please click here.
We understand that resigning is a big step to take, and a constructive dismissal claim can be difficult to pursue at an Employment Tribunal. It may be the case that an employer is willing to consider a settlement agreement which is sometimes used to end an employment relationship in a way the employer and employee both agree with, subject to terms being mutually agreed.
Should an employee sign a settlement agreement, they cannot make any subsequent claim to an Employment Tribunal and both parties agree to keep this matter confidential. For more information on settlement agreements, please click here.
Should an employee decide to resign, they should ensure they have obtained advice prior to this, making sure to keep a written copy of everything and clearly explaining their reasons for leaving within their resignation letter.
Get in Touch
If you would like to speak to a member of our team about any of our services or if you have any concerns about a potential constructive unfair dismissal, please do not hesitate to contact us at firstname.lastname@example.org.
Disclaimer: Please note this blog is for reference purposes only and is only accurate at the date it was published. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action. Please contact us if you have any questions email@example.com