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What is constructive dismissal?
Constructive dismissal is where you leave your job due to your employer’s conduct towards you. In essence, your employer will have made your working life so difficult that you feel you are unable to continue at your place of employment.
When this happens, your resignation from your job is treated as an actual dismissal by your employer, which enables you to claim unfair and/or wrongful dismissal.
However, the mere fact that you have been constructively dismissed only proves that, for all intents and purposes, you were dismissed. It does not automatically prove that your dismissal was unfair and/or wrongful. You have the responsibility of proving that was the case.
How do you prove constructive dismissal?
Under the Employment Rights Act 1996, if you terminate your employment contract in circumstances that entitle you to do so without notice due to your employer’s conduct, your termination constitutes a dismissal.
Occasionally, your employer’s conduct will be a fundamental breach of an express term of your contract of employment, such as the right to be paid a certain amount on a specific date.
More commonly, your employer’s behaviour will breach the implied term of mutual trust and confidence built into your contract. This term demands that your employer refrains from conducting themselves in a fashion that is likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.
What type of employer behaviour can give rise to a constructive dismissal claim?
Examples of constructive dismissal include:
- Not providing help and support to managers in difficult work situations
- Harassing or humiliating staff members, especially in front of junior staff
- Victimising or singling out certain members of staff
- Changing an employee’s job description without consultation
- Making a significant change in an employee’s job location at short notice
- Falsely accusing an employee of misconduct or of being incompetent
- Excessive demotion or disciplining of employees.
You can tender your resignation over a single serious incident or due to the accumulation of a number of less serious occurrences. However, you must resign shortly after the incident giving rise to your constructive dismissal claim otherwise your employer may argue that, by staying with the company, you accepted the conduct or treatment.
It is not easy to prove constructive dismissal. You must prove that:
- Your employer made a fundamental (rather than a minor) breach of contract
- Your decision to terminate your employment was a reaction to the breach and was not, for example, because you had been offered a more attractive job elsewhere
- Before leaving the firm, you attempted to resolve your complaint through your employer’s grievance procedure.
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