What is constructive dismissal in employment law?

Constructive dismissal is a concept in employment law that refers to a particular instance where an employee considers their position as untenable because their employer has breached their employment contract. This is therefore a rather nuanced concept because no two instances are ever the same.

The aim therefore is to lift the cover on this concept to provide further clarity on the position for all of those parties involved.

How do you prove constructive dismissal?

At the heart of constructive dismissal is the breach of contract. This is not purely limited to the written terms but can also include inferences brought about by the employer; actions which could lead to a constructive dismissal include:

  • Spontaneous and, or Unilateral changes to terms and conditions of employment without consent
  • Failure to pay the employee
  • Allowing bullying, harassment, or discrimination to take place
  • Unreasonable changes to work patterns or location without agreement

Framework

Given the makeshift nature of constructive dismissal, it is an all-encompassing concept which sits in place of what would normally be a claim for unfair dismissal, therefore, in order to succeed, the employee needs to show that:

  • The employer committed a serious breach of contract
  • The employee resigned in response to that breach
  • The employee did not delay when resigning after the breach occurred

For the employee

To evidence your case, you must gather evidence of the breaches as they occur. This could include emails, witness statements, or any other form of documentation. You should seek independent legal advice before taking the step to resign, as once you have resigned, you must typically file a claim within three months less one day.

For the employer

You must be careful in your dealings with employees. Regularly reviewing employment contracts and maintaining open communication channels can prevent misunderstandings that may lead to claims of constructive dismissal. A training manager, for example, can be on hand to recognise and address grievances promptly and fairly to avoid disputes from arising.

Need advice?

If you believe that you have been constructively dismissed or if you wish to avoid the assertion that your business has constructively dismissed an employee, please contact  the dispute resolution team at Fisher Jones Greenwood LLP – email [email protected], telephone number 01245 584520.