CONSTRUCTIVE UNFAIR DISMISSAL
What is a constructive dismissal?
The law says that an employee is constructively dismissed if he/she:- “Terminates the contract under which he/she is employed (with or without notice) in circumstances in which he/she is entitled to terminate it without notice by reason of the employer’s conduct”.
A constructive dismissal may be fair or unfair and it is still necessary to meet the eligibility criteria of an unfair dismissal case, e.g. length of service.*
What needs to be proved in order to bring a constructive dismissal claim?
To claim constructive dismissal an employee must establish that:-
1) The employer was in breach of the term of the contract of employment;
2) The breach was a repudiatory (fundamental) breach entitling the employee to resign and;
3) The employee resigned because of that breach of contract.
The burden of proof is on the employee to establish each of these elements and if he/she fails to establish any of them he/she will be held to have resigned and therefore will not be able to bring an unfair dismissal claim. There are two types of terms, express (i.e. those written down) and implied (i.e. those automatically included by law). An example of breach of an express term would be a failure to pay wages or a cut in pay. A significant unilateral (i.e. without agreement) variation of an employee’s job duties may amount to breach of contract.
Many constructive dismissal cases however arise as a result of breach of an implied term of the contract, most commonly the implied term of trust and confidence. Some examples of breach of the implied term of trust and confidence could be swearing abusively at the employee, failure to investigate properly an employee’s allegations of sexual harassment or reprimanding a supervisor in the presence of his or her subordinates. It is important that employees act promptly in response to the breach as otherwise they may be taken to have accepted the employer’s conduct (i.e. waived the breach).
We would always recommend seeking advice as soon as possible if you are considering bringing a constructive dismissal claim.
Once you have resigned the claim must be issued within 3 months less one day, of the Effective Date of Termination of employment (the “EDT”). Determining the EDT can be complicated so if in doubt seek legal advice.
It is necessary before you can issue an unfair dismissal claim for you to contact Acas before the 3 month time limit expires to begin the Early Conciliation process. Once Acas has issued the early conciliation certificate you will then be able to bring a claim in the tribunal. If you do not do this your constructive dismissal claim will be rejected by the employment tribunal.