Constructive dismissal is when an employee considers they have no option but to resign because of a serious breach of contract by the employer. For a successful claim, an employee must prove that:
A breach of contract could include a fundamental change to terms and conditions of employment, such as non-payment of wages, failing to provide a safe working environment (for example, by failing to stop bullying) and suspending an employee without pay where there was no contractual right to. But most cases are brought on the grounds that the employer has breached the implied term of trust and confidence.
The law implies a term into all employment contracts that employers will not, without reasonable or proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties. Examples from case law include:
Unlike an unfair dismissal claim, where the burden is on the employer to establish a fair reason for dismissal, with constructive dismissal the burden of proof is on the employee.
To win a claim, you need to prove that your employer committed a serious breach of your contract. This could be an express, written term (non-payment of wages, for example) or an implied term, such as the duty to provide a safe working environment. The challenge lies in showing that the breach was sufficiently serious to justify resignation – unreasonable behaviour by the employer, for example, will rarely be considered serious enough.
Proving that your resignation was a direct result of the breach is another obstacle. In one case, an employee who resigned because they didn’t agree with how the business was run was held not to have been constructively dismissed. Neither was an employee who resigned over a dispute about pay. In both cases, the court held there was no breach of contract. Employers often counter constructive dismissal claims by arguing that the employee resigned for reasons unrelated to a contract breach, or that they were unaware of the employee’s concerns.
The time limit for bringing a employment tribunal claim is three months less one day from the end of employment, and employees must also notify ACAS within three months that they have started the early conciliation process. Tribunals can only award financial compensation and most have a backlog of cases which could lead to significant delays.
If you are considering resigning and claiming constructive dismissal, your MiP may be able to help you find a resolution with a better outcome. These include:
If you’re facing an intolerable situation at work, it’s essential to seek advice from your MiP rep and explore all possible avenues before resigning. MiP is here to support you every step of the way.
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