Constructive Dismissal

If you resign from your job because of unacceptable behaviour on the part of your employer, you may be able to make a claim for constructive dismissal, although it is notoriously difficult to succeed in such a claim.

To be eligible to bring a case of constructive unfair dismissal in the employment tribunal you need to have been employed by your employer for 103 weeks unless you resign for example, because of discrimination, whistleblowing, issues related to Health & Safety or because you were exercising a statutory right.

In order to prove a case of constructive unfair dismissal, you would need to show that:

  • Your employer has committed a fundamental breach of your contract of employment;
  • You felt you had no option but to leave because of that breach;
  • You have not done anything that could be construed as you having accepted or affirmed the breach.  Mere delay in itself is not enough to constitute affirmation but it is open to the employment tribunal to infer implied affirmation from a prolonged delay.

Examples of a fundamental breach, (a breach which goes to the very root of your contract) might include the following:

  • non-payment of your salary;
  • demotion for no apparent reason;
  • forcing you to accept unreasonable changes to your conditions of employment;
  • failing to consult you or failing to obtain your agreement to contractual changes (eg suddenly informing you of a change of location, or change in your hours of work);
  • bullying, harassment or violence against you by work colleagues;
  • making you work in dangerous conditions.

A constructive unfair dismissal claim can be made as a result of one serious breach, or a series of smaller incidents that together amount to a fundamental breach of contract, with the most recent incident being regarded as the “final straw”.

Although not fatal if an employee works his or her notice period, in most constructive dismissal cases because of the serious nature of the alleged breach the employee often resigns with immediate effect.  

You may decide to raise a formal grievance prior to resigning, and it is advisable to try and resolve the issue in this way as it can affect your level of compensation, if you are successful.

Your employer may wish to negotiate a settlement with you if they feel you have a possible claim against them, and this can be done by way of a settlement agreement.  The settlement agreement is entered into in order to preclude you from making any claims against them or to stop a claim that you have already brought proceeding to a tribunal hearing.

If you believe you have been constructively dismissed, or you would simply like more information about your rights, Ashby Cohen can help you.  We specialise in employment law cases, and our years of experience as employment lawyers make us especially qualified to assist you with any constructive dismissal issues you may have. Please contact us for an initial free consultation.

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