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Constructive Dismissal
 Constructive dismissal is more accurately ‘constructive unfair dismissal’.
It describes the situation when an employee terminates their contract of employment, either giving or not giving notice, in circumstances where they are entitled to terminate the contract without notice.
To prove a constructive unfair dismissal, an employee must show that:
- the employer has breached the contract, and
- it is a significant or fundamental breach of the contract, and
- they terminated their employment in response to that breach and did not delay resigning.
It is sometimes difficult for those involved to know whether the employee has acted appropriately. Sometimes the employee does not take action quickly enough, so that the Employment Tribunal decides that the individual has accepted the breach by continuing to work after the breach occurred. Alternatively an employee may take action too quickly, by leaving immediately and not following the statutory grievance procedure.
Two common reasons for constructive dismissal situations arising are in redundancy and harassment situations.
When a business is experiencing financial problems, an employer may try to dismiss employees as redundant, request them to work for a reduced number of hours or try to alter the terms of employment. This may be in breach of the contract of employment. If employees continue to work under the new terms without objecting they could be considered to be a giving up their rights to claim constructive dismissal and redundancy pay. Alternatively if there has been a genuine breach of the employment contract by the employer, an employee may be able to resign and claim constructive dismissal by reason of redundancy and claim a redundancy payment.
Constructive dismissal may also arise if an employee has been harassed and the behaviour has gone unchallenged by the employer. Harassment can take many forms, ranging, for example from physical or verbal bullying to discriminatory jokes. The test is whether the behaviour is unacceptable by reasonable, normal standards in deciding if the action is harassment, rather than the intention of the person who carries out the activity in question.
We can advice employers on how to establish an appropriate policies and procedures to minimise the possibility of an employee claiming constructive dismissal by fulfilling their duty of care and responsibilities under health and safety and discrimination legislation.
Whether you are an employee, who has left work or is thinking of leaving work, or you are an employer needing advice on whether or not your action may be a breach of contract, please contact us.
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