You may be able to claim constructive dismissal if you are forced to resign because of your employer’s unlawful behaviour. In order to pursue a claim for constructive dismissal, you must show that:
1. your employer committed a serious breach of your employment contract;
2. you did not accept the breach; and
3. you felt forced to resign because of that breach.
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1. Serious breach of your employment contract
Examples of serious breaches of contract by an employer include:
- unilaterally cutting your pay (including overtime and fringe benefits) or failing to pay you;
- arbitrarily demoting you to a lesser role without reason;
- changing your job description/duties, working hours or place of work without your agreement;
- threatening to dismiss you if you do not agree to accept changes to your employment terms and conditions;
- making it impossible for you to do your job effectively;
- failing to give you reasonable support to carry out your job without disruption, harassment, or bullying from fellow workers;
- forcing you to work in conditions where health and safety regulations are ignored;
- seriously breaching the ‘duty of mutual trust and confidence’.
a. Implied duty of mutual trust and confidence
This duty is implied into every employment contract and means that employers and employees should not ‘without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between them’.
Examples of breaches of this implied duty include:
- wrongly accusing you of theft without evidence;
- if you want a transfer, lying to you that no vacancies exist;
- giving you a final written warning where it is not justified;
- failing to make reasonable adjustments, which amounts to disability or sex discrimination;
- foul and abusive language by a senior manager;
- other conduct deemed so seriously unreasonable it amounts to a repudiatory breach of contract.
Note, though, that if you are already in serious breach of the implied duty yourself, even if your employer is unaware of it, you cannot claim constructive dismissal.
b. Establishing a serious breach
Also recognise that establishing a serious breach of contract occurred is not easy — locating witnesses and other tangible evidence to back up your claim is essential.
2. You did not accept or waive the breach
You do not need to tell your employer outright that you accept or waive the breach to lose your right to claim constructive dismissal. Acceptance must, nevertheless, be unambiguous and unequivocal.
In this context, failing to resign within a reasonable period may be deemed as an acceptance or waiver of the breach and an affirmation of the employment contract, thereby precluding a claim of constructive dismissal.
Note, however, that where there are a series of acts by your employer, which individually or in the aggregate constitute a serious breach of contract, culminating in a ‘last straw’ event that triggers resignation, your response may be measured from the last incident rather than the first. Thus, in this case, your failure to resign after the first act would not constitute an acceptance or waiver.
3. You were forced to resign because of the breach
Provided you can establish a serious breach of contract occurred — which you neither accepted nor waived — you should not have much difficulty showing you felt forced to resign because of it.
4. Unfair and wrongful constructive dismissal
Once you demonstrate that you were constructively dismissed, you must also show that the dismissal was unfair or wrongful.
a. Unfair dismissal
There are several ways to prove an employer’s action was unfair, for example because it was grounded on:
- pregnancy, maternity, or paternity;
- marital status;
- family ties;
- membership or non-membership of a trade union;
- assertion of a statutory right;
- industrial action;
- jury service;
- activities as an occupational pension scheme trustee; or
- health and safety.
(NB. This is not an exhaustive list.)
Generally, only employees who have two years’ continuity of service can claim unfair dismissal. But this rule does not apply if you are claiming automatic unfair dismissal (NB. dismissal for any of the reasons listed above would constitute automatic unfair dismissal).
You must also comply with strict time limits to claim unfair dismissal. Normally a claim must be brought within three months of the last day of employment, counting the last day of employment as the first day of the three month period.
Moreover, certain categories of employees are barred from claiming unfair dismissal. These include members of the armed forces or police service and mariners.
b. Wrongful dismissal
Proving wrongful dismissal simply requires you demonstrate that your employer breached a term in your employment contract, which resulted in dismissal or forced you to leave. This is a lesser burden than that required for constructive dismissal. Thus, assuming you establish constructive dismissal it will automatically be wrongful.
5. Choice of venue
You can pursue your claim for wrongful constructive dismissal either in the civil courts or before an employment tribunal. But you can only claim unfair constructive dismissal in front of an employment tribunal. (NB. Keep on reading to learn why choice of venue is so important…)
6. Time Limits
The time limit for filing a claim with an employment tribunal is the same for both unfair and wrongful constructive dismissal — within three months of your last day of employment.
As stated above, however, you can pursue your claim for wrongful constructive dismissal either in the civil courts or an employment tribunal. The time limit for filing in civil court is much longer — you have six years from the date you were dismissed.
7. Starting a claim
To start an action against your former employer, you will need to file a statement of claim. This is a written statement, which contains basic information about you and your former employer (e.g., your names, addresses, and the dates employment began and ended), and allegations of fact which support your claim of constructive dismissal. If you lodge a claim with an employment tribunal, you will also need to complete and file Form ET1. Your former employer then has an opportunity to respond, usually within 28 days, but this may be extended.
8. Remedies for constructive dismissal
There are two remedies available for constructive dismissal: re-employment and damages.
a. Differences between remedies for wrongful and unfair constructive dismissal
Firstly, while tribunals rarely order re-employment for unfair constructive dismissal (since few claimants request it), they never do for wrongful constructive dismissal.
Moreover, damages for unfair constructive dismissal are limited by statute, while damages for wrongful constructive dismissal are not — unless the employee decides to pursue a claim before an employment tribunal, in which they are limited to £25,000
In addition, under the Employment Rights Act, damages for unfair constructive dismissal consist of two elements: the basic award and the compensatory award. The basic award is determined by reference to a fixed statutory formula — identical to the one used to calculate redundancy pay — and is limited to a maximum overall payment of (as of 6th April 2014) £13,920. The current compensatory award limit is £76,574.
b. Additional compensation
It is also possible that the court/tribunal will award additional compensation, where for example an act of unlawful discrimination by the employer (e.g., sex discrimination) forced the employee to resign.
c. Duty to mitigate your loss
In all cases, however, you are under a duty to mitigate your loss. This means you should take active steps to look for new employment as soon as possible.
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