Constructive dismissal is where an employee is forced to resign or feels pressurised into leaving work as a consequence of unacceptable behaviour on the part of their employer. In such circumstances an employee may be able to claim constructive dismissal if they can show the following:
- Your employer has committed a serious breach of your employment contract
- You felt forced to leave because of that breach
- You did not accept the breach nor have you done anything that could be construed as acceptance of the breach
Examples of serious breach of employment contract may include:
- Non payment of salary
- Demotion to a lesser role for no reason
- Changing your job description without your agreement
- Forcing you to accept unreasonable changes to your conditions of employment without your agreement such as a change in working hours, introduction of night shift or a sudden change in location of work
- Bullying harassment or violence against you by work colleagues
- Making you work in dangerous conditions
- Unreasonable disciplining of the employee
- Seriously breaching the duty of ‘mutual trust and confidence’ which is implied into all employment contracts. For example, accusations of theft without evidence or use of foul and abusive language by a senior manager.
A claim for constructive dismissal can be made as a consequence of a single fundamentally serious breach or alternatively as a result of a series of smaller incidents, with the most recent incident being regarded as the ’final straw’.
Before resigning, it is advisable that the employee raises a grievance with the employer with a view to providing the employer with an opportunity to resolve the situation. Failure to do this could reduce compensation for any constructive dismissal claim, by up to 25%.
Can I Claim?
As a prerequisite to claiming constructive dismissal, the employee must have been employed for at least 12 months continuously before resigning. Also, the claim should be made to the employment tribunal within three months of the date of resignation. It is possible to lodge a grievance after resignation and in such instances the tribunal has the discretion to extend the time limit for bringing a claim
If you are considering resigning as a consequence of a breach of your employment contract then it is vital that you seek legal advice. The advice given may in the first instance allow you to reach a resolution at work, failing which assist you in following the correct procedure to successfully claim constructive dismissal and secure the maximum claim given your circumstances.
If there has been a serious breach or a number of small breaches of the employment contract, then a failure to resign within a reasonable period of this may be construed as an acceptance of the breach of contract which would thereby preclude a claim for constructive dismissal. It is therefore vital that you act quickly, obtain legal advice as soon as possible and follow the correct procedure. A delay in seeking advice may jeopardise your ability to bring a claim.
It can be difficult to prove constructive dismissal. However, our expert solicitors can advise you of the necessary proof required to prove constructive dismissal. Contact us on 0800 6441544 for a free consultation.Contact us