What is constructive dismissal?
A constructive dismissal claim involves a resignation, normally without notice, in response to a fundamental breach of contract. The most common breach relied on for a constructive dismissal is breach of the implied duty of “mutual trust and confidence”.
The conduct may be a one-off act or a series of acts over time culminating in a “last straw” incident and the employee must resign quickly in response to the alleged breach.
Constructive dismissal examples
- A substantial change in working terms and conditions.
- Unreasonable performance management
- Bullying or discrimination at work by another employee or manager.
- Threatening behaviour or physical violence.
- Health and safety failures at work.
Unfair vs constructive dismissal
Unfair dismissal is when the employer dismisses the employee without a fair reason or without following a fair process. There are five fair reasons for dismissal (capability, conduct, redundancy, SOSR, illegality) and if the dismissal does not fall into one of these categories, then it may be seen as unfair, and potentially even discriminatory depending on the circumstances.
However constructive dismissal occurs when an employer’s actions or behaviour create such an intolerable work environment that the employee feels there is no other option but to resign. Therefore in this instance, it is the employee deciding to leave and the employer hasn’t actively dismissed them. Hence why the employee would argue they have been constructively dismissed due to the employer’s action.
Both situations can lead to employment tribunal claims and compensation being sought by the affected employee.
How to make a constructive dismissal claim
- First, the employee will need to be able to identity a fundamental breach of their contract of employment. The employee will then need to resign quickly in response to that breach, as delaying the decision too long could mean they can no longer rely on the alleged breach as the reason for their resignation.
- A decision to resign should be carefully considered as it often means resigning promptly and without notice. Therefore, most employees will leave with immediate effect and will not receive any further pay or benefits from their employer. Whilst this should not dissuade an employee from taking action, it is an important consideration.
- We can advise on potential options, strength of any potential employment tribunal claim, and even open discussions with the employer on behalf of the employee, to see if a mutual agreement can be reached such as a constructive dismissal settlement agreement.
Why choose SAS Daniels
We have the experience and knowledge to advise if you have a constructive dismissal claim and the prospects of winning. We also work to achieve the best result for you which may involve resigning and brining an employment tribunal claim, or negotiating an exit package whilst also protecting your position.
