Part 3 of 4

What practical steps can I take to improve my chances of winning a claim for constructive unfair dismissal?

Raising a grievance

In most cases, an employee should raise a grievance with their employer whilst reserving their legal rights to bring a claim for constructive unfair dismissal, and preferably before resigning. It is important to note that the employer cannot ‘cure the breach of contract’.  All it can do is put forward proposals to encourage the employee to waive the breach and remain in employment. If the employer fails to do that, the employee may resign.

What evidence do I need to prove constructive dismissal?

Proving constructive dismissal can be a complex process and specific evidence required will depend on the circumstances of each case. However, some types of evidence that may be helpful in proving constructive dismissal include:

1.   Documentation of employer’s behaviour sent to the employee: This could include emails, letters, or written statements detailing the employer’s behaviour or the changes to working conditions. It is important not to take confidential information belonging to an employer;

2.   Witness statements: Statements from co-workers; supervisors; or other individuals who have witnessed the employer’s behaviour;

3.   Personal records: It is important to keep notes of matters as they occur, this will include dates, times, and descriptions of the behaviour i.e., a diary.

4.   The employment contract: The terms of the employment contract, including nay promises made by the employer, can be used to support a claim that the employer breached the employment contract.

Settlement

Legal proceedings are a last resort, and it is often possible to settle a potential claim for constructive unfair dismissal before resignation, or before commencing legal proceedings.

As the employee must apply for ACAS Early Conciliation before bringing an employment tribunal claim, a settlement can often be reached via ACAS. It is important to note that ACAS do not give legal advice, take sides or make any judgments. They are there to assist the parties reach a settlement if both parties want to engage in the process.

Alternatively, an employment lawyer can assist. An employment lawyer can advise about the strength of a claim and what will be a reasonable settlement. Knowing the strength of the claim can help the employee reach a reasonable settlement in negotiation. An employer lawyer can also assist in negotiation by putting forward the employee’s case in legal terms to demonstrate how exposed the employer is to a claim, and to explain how the settlement figure put forward is reasonable.

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.

29.03.2023