Constructive Unfair Dismissal
Thrive can help you with a ‘constructive dismissal’ claim when you have been forced to resign because of the actions of your employer or colleagues which amounts to a fundamental breach of contract.
As an employee, where you feel you have been forced to leave by the breach by an employer, you are entitled to treat yourself as having been ‘dismissed’.
What is a constructive dismissal?
This is effectively a claim where an employee alleges that they were forced to resign because of the actions of their employer or colleagues, where such treatment or actions amount to a fundamental breach of contract or of the implied relationship of trust and confidence. Effectively, the employee is entitled to resign, and can treat themselves as having been dismissed.
Who can claim?
In order to proceed with this type of claim, the employee must have continuously worked for the employer for at least 2 years, which is the same requirement as for an unfair dismissal claim.
What is a fundamental breach of contract?
Examples of situations where an employee could have a constructive unfair dismissal claim include:
- If they are demoted for no good reason.
- If they are being harassed or discriminated against by either the employer or colleagues.
- If their employer changes their hours or place of work without agreement and without the contractual right to do so.
- If an employer refuses to deal with a grievance or mismanages a grievance to the point where it is an completely ineffective process.
- If the employee is being given an excessive workload continuously, with no support.
- If the employee is consistently being paid incorrectly or failure to pay.
It can also cover breaches of the ‘implied term’ of trust and confidence.
An employer simply acting unfairly or unreasonably will not be enough to justify a constructive dismissal claim. It has to be such a fundamental breach that, for the employee, the only possible response is to resign, because remaining would be untenable. For the strongest possible claim, the employee should resign without notice and without a job to go to, and with an accompanying resignation letter which clearly outlines the reasons and breaches on which they rely in their resignation.
Constructive v Unfair Dismissal
In practical terms, constructive dismissal is a resignation which is treated as a dismissal in law due to the employer’s repudiatory conduct. The conduct by the employer must be enough to amount to a breach of contract.
On the other hand, unfair dismissal is when an employer terminates the employment and this is unfair as they did not follow a fair process, or the decision falls outside the band of reasonable responses available to that employer, or they didn’t have a fair reason to do so. You can read more about unfair dismissal here.
For both claims, except in certain circumstances, an employee needs more than two years’ continuous service to claim.
How we can help employees
Constructive dismissal claims can be difficult to win. With that in mind, if you haven’t already done so, we would highly recommend you seek legal advice from us before making the decision to resign. It is important that your letter of resignation is set out in the right way, clearly stating the reasons and highlighting the breaches upon which you rely, in order for you to bring a claim. The timing of the resignation is also important.
Thrive can also help you if you believe you may have been constructively dismissed and have already resigned.
How we can help employers
Where an employee threatens to sue you for constructive dismissal or you receive a resignation which you think could result in a claim, please contact us for a free consultation and we can consider how to appropriately mitigate the risk of any claim.
If you think Thrive Law can assist you further, get in touch today a email@example.com