Constructive dismissal

Constructive dismissal may arise where issues relating to an employee’s job, working conditions or are dealt with so badly by the employer, that it amounts to a breach of contract including where the employee loses all trust or confidence in the employer.

Examples of reasons to claim for constructive dismissal:

  • Failing to correctly address and investigate a grievance
  • Failing to pay an employee their correct wages, or reducing their wages without their agreement or without consulting them first
  • Failing to pay an employee their commission or changing the way that commission is earned without consulting the employee first
  • Giving an employee an excessive workload, which is likely to make them fail, feel pressured or become stressed
  • Demoting an employee without their agreement
  • Significantly changing an employee’s job roles, duties or responsibilities without their agreement or without consulting them first
  • Harassing or discriminating against an employee
  • Embarrassing or humiliating an employee in front of colleagues or clients
  • Suspending or excluding an employee without a solid, proven reason
  • Beginning disciplinary proceedings against an employee without any solid foundations for doing so
  • Significantly changing an employee’s working environment to one which is detrimental to the employee’s ability to carry out their job well

Here are some more detailed examples of where it is possible to claim for constructive dismissal:

Verbally resigning in the heat of the moment

Employers need to be very careful about acting on a resignation given in the heat of the moment. For example, if a heated discussion takes place between an employee and their manager, where the employee verbally resigns.

An employer should not take a heat of the moment verbal resignation as a solid resignation and enforce this without following up with at least one of the following actions:

  • Giving the employee time to calm down
  • Discussing whether the employee is certain they wish to resign (once calmed down)
  • Requesting confirmation of the employee’s resignation in writing

If an employer fails to carry out one or more of the above, an Employment Tribunal would look into how the verbal resignation took place, before making a decision about whether enforcing the resignation was constructive dismissal.

Proving a breach of trust and confidence

An example of where constructive dismissal can occur if an employee feels like they can no longer trust their employer would be where an employer humiliates an employee for making a small mistake or error, in front of their colleagues.  In this instance, the employee would have to prove a breach of the implied term of mutual trust and confidence by their employer.

Often, if the employee is left feeling as though they have no choice but to resign because they feel extremely uncomfortable at work, they will claim a breach of trust and confidence by resigning and bringing a case of constructive dismissal against their employer.

Proving unfair performance targets

One of the most common reasons for constructive dismissal is ousting an employee by making it impossible for them to do their job well.  For example, if an employee had worked as a recruitment consultant for five years and consistently met their targets, only to miss their latest increased target because of an economic downturn and a lack of people looking to recruit one year, it would be potentially unfair to put instructions to improve or be dismissed on a performance improvement plan.

If what is being asked of an employee is significantly unreasonable and as such results in a breakdown of a working relationship between employee and employer, an employment tribunal will consider the evidence and decide whether the employer has breached the implied term of trust and confidence, resulting in constructive dismissal.

Why claim for constructive dismissal?

If an employee feels that their job or working environment has permanently changed for the worse, with the irretrievable breakdown of the working relationship between employer and employee, breach in trust and confidence or unfair treatment leading to them resigning, they should claim for constructive dismissal.

By doing this, if their case is successful, they will usually be awarded compensation for loss of earnings until they attain alternate employment and the equivalent of their statutory redundancy payment.

Legal advice: making a claim for constructive dismissal

If you have been going through a tough time at work, which has inevitably led to you handing your notice in and resigning, you could have a claim for unfair dismissal.

Do any of the situations mentioned above sound familiar to you?  Feel free to call me to discuss whether or not you have a strong case and how to go about making a claim for constructive dismissal if you do.

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