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What is constructive dismissal?

If you feel you had no choice but to leave your job, this may be classed as constructive dismissal. But what exactly does that mean?

To begin an unfair or wrongful dismissal claim, or claim redundancy pay, you need to have been dismissed. This means your employment has to have been terminated by your employer, not by you.

In some cases, even if it was your decision to leave your job rather than your employer’s, you may still be able to bring a claim. In order to do so you must be able to establish that your resignation was a “constructive dismissal”.

To qualify, your employer must have behaved in a way that seriously breached (or “repudiated”) your employment contract, causing you to resign immediately (or very soon after) in response to that breach. You may then be able to claim that you’ve been dismissed constructively.

 

When can constructive dismissal take place?

In order for your dismissal to be classed as constructive dismissal, the following statements need to be true:

  • You resigned.

  • Your employer fundamentally (ie very seriously) breached an actual or implied term (most commonly regarding “trust and confidence”) of your employment contract. Unreasonable behaviour or minor breaches of contract by your employer will not be enough.

  • The breach is either one incident, or a series of incidents culminating in something that was the “final straw”.

  • Your resignation is because of that breach; and

  • You resign immediately or soon afterwards.

 

These are some examples of potentially 'repudiatory' breaches of contract:

  • Your employer shouts at you in front of your colleagues, leaving you feeling upset and humiliated and unable to face going back to work.

  • You refuse to change your contracted hours of work, but your employer goes ahead and changes them anyway.

  • You are a wheelchair user, you work on the fourth floor and your employer refuses to fix the lifts.

What can I do in cases of constructive dismissal?

When it comes to constructive dismissal you need to tread carefully.

If you’ve been employed at your company for less than two years, you will not qualify to bring an ordinary unfair dismissal claim. That said, you may be eligible for other claims that don’t require any length of employment, eg discrimination.

If you have a claim, there’s no guarantee it will be successful, even if you feel your employer’s conduct was serious and unacceptable. It will be for the tribunal to decide on the evidence presented to it and it may not agree with you.

It’s also important to remember that tribunal claims take many months to be decided on. You will need to follow a strict legal procedure and possibly attend a hearing in front of a judge.  All this takes time and can be stressful. Whether your claim is successful or not, you may be without an income for a long time if finding another job proves difficult.

With so many factors to consider when dealing with employment law, it’s important you get the best professional advice. Speak to the team at Which? Legal today to find out what your options are.