Constructive Dismissal

If an employee resigns from their job because of alleged behaviour on your part, they may try to make a claim for constructive dismissal. 

To be eligible to bring a case of constructive unfair dismissal in the employment tribunal an employee generally needs to have been employed for 103 weeks, subject to certain exceptions including resigning because of discrimination of whistleblowing matters.

In order to prove a case of constructive dismissal, your employee would need to show that:

  • You have committed a fundamental breach of the express or implied terms of their employment contract; and
  • They felt they had no option but to leave because of that breach;
  • They have not done anything that could be construed as them having accepted that breach

Examples of a fundamental breach of contract might include the following:

  • non-payment of your employee’s salary
  • demotion for no apparent reason
  • forcing your employee to accept unreasonable changes to their conditions of employment without consulting them or obtaining their agreement (eg suddenly informing them of a change of location, or change in their hours of work)
  • bullying, harassment or violence against them by work colleagues
  • making them work in dangerous conditions

A constructive 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”.

Your employee may raise a formal grievance prior to resigning (their level of compensation in a tribunal could be affected if they don’t), and it is advisable to try and resolve the issue in this way. You may wish to negotiate a settlement with your employee if you feel they have a possible claim against you, and this can be done by way of a settlement agreement in order to preclude them from making any claims against you.

If you would like more detailed information about constructive dismissal, 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 telephone consultation.

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