Part 1 of 4

What is Constructive Dismissal?

Constructive dismissal refers to a situation in which an employee resigns in response to their employer’s conduct. In this situation, the employer has created such an intolerable working environment, either through a single serious event or a series of smaller events, that the employee has no option but to resign. The employer’s behaviour must be a breach of the employment contract and make continuing to work for the employer impossible.

It is important to note that not every unpleasant or difficult situation in the workplace entitles an employee to resign and claim constructive dismissal. 

Basic principles

The employer must be in serious breach of contract. A breach of contract can be one serious incident or a series of smaller incidents that accumulate overtime, ending with a ‘final straw’ incident.

The employee must resign promptly, and in response to the employer’s breach of contract.

The employee must prove that the employer has acted in breach of contract. 

The employee must show that that the employer’s conduct is more than unreasonable – the distinction is often a narrow one, and the employee must show that the employer’s conduct was intentional or likely to destroy trust and confidence.

Examples of breach of contract

1.           A breach of the implied term of trust and confidence such as:

·        Harassment, discrimination, bullying, or any other behaviour that is illegal or unethical and creates a hostile working environment

·        Breach of employee’s duties under legislation such as the Equality Act 2010, or Employment Rights Act 1996

·        Making the job impossible;

·        Treating an employee unfairly and differently relating to pay and bonuses;

·        Invitation to resign

·        Operating a corrupt business

2.      Breaches of other implied terms of the employment contract, such as:

• duty to take reasonable care of health and safety of the employee;

• prompt redress of grievances;

• duty of confidentiality;

• negative comments about the employee;

• duty to provide work. 

Note that such breaches will often amount to a breach of the overriding implied term of trust and confidence.

3.     Breach of written terms of the employment contract. For example, significant changes to working conditions without a good business reason, or which the employee cannot be expected to comply with. This can include changes to hours of work, job duties, work location or a reduction in pay or benefits. The changes must be substantial.

It is important to note that the above are just examples and will not always give rise to an entitlement to resign and claim constructive unfair dismissal.

Article by

Louise Maynard

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.

We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777.

Disclaimer 

The above provides a general overview relating to constructive dismissal and is not intended nor construed as providing specific legal advice. Constructive unfair dismissal is a complicated legal claim. An individual should take legal advice from an employment lawyer if they believe their employer has behaved in such a way that entitles the employee to resign and bring a claim for constructive unfair dismissal.

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice.

27.03.2023