Constructive Dismissal: Guide for Employees

What Is a Constructive Dismissal?

The first thing we must establish is that constructive dismissal is not, properly speaking, a “dismissal”. Rather, it’s a series of actions that strongly suggest that the employer no longer wishes to keep you employed without having to make it explicit or issue a dismissal letter.

What employers might be seeking by these actions is, ultimately, the employee’s resignation letter. This would allow them to ideally “dodge” the costs and legal burdens of moving forward with a dismissal, whether fair or not. However, in doing so, they have breached the employment contract and could be held liable in light of the UK’s employment law.

Constructive dismissal is acknowledged in section 95 (1)(c) of the Employment Rights Act 1996, regarding it as a form of unfair dismissal provided that the employer committed a fundamental breach of contract and there was a “causal connection” linking the employee’s resignation and said breach. In other words, the employee should not have had a more pressing motive for resigning other than the fact that mutual trust was severed by the employer’s conduct.

Am I Entitled to Submit a Constructive Dismissal Claim?

You can be eligible to claim constructive dismissal on the condition that you can show evidence of having worked with the same employer continuously for two years or more and that you hold the status of employee (workers and self-employed individuals are not qualified).

Nevertheless, you won’t need to fulfil the time requirement if you were constructively dismissed for reasons that can be deemed “automatically unfair”, that is, in blatant violation of basic employment rights and laws against discrimination.

For example, if it’s revealed that the reason for the breach is directly related to the employee’s status as a pregnant woman or whistleblower, they’d be exempt from the continuous employment prerequisite.

Constructive Dismissal Test

As disclosed earlier, you’d have to prove constructive dismissal by showing that:

1. A serious breach of the employment contract has occurred, and
2. You were forced to resign in reaction to that breach and there were no reasons of considerably more weight.

Serious Breach of Contract

As for the first point, you should be capable of demonstrating that the employer acted in stark contradiction to a contractual term and that this was serious enough to justify your resignation. This term does not have to be an express one, meaning that you may point to an implied term of mutual trust.

This fundamental breach of contract might consist of a single incident grave enough to be considered on its own or you can also point to slightly less serious incidents that, taken collectively, could be interpreted as such.

Causal Connection

Even when determined that the first criterion was met, you’d have to move fast. If considerable time has passed since the last incident, a judge may conclude that you have waived or accepted the breach and, therefore, that your resignation was for an entirely unrelated motive, in which case they will not concede your claim.

You could potentially escape this by giving clear signals that you were working under protest up until the resignation letter was handed over (more on this later).

Constructive Dismissal Examples

Some examples of a “fundamental breach” that may enable you to claim constructive dismissal include:

• Not receiving pay slips, receiving them irregularly or being paid an incorrect amount unjustifiably.
• Blatant bullying, harassment, and/or discrimination.
• The refusal on the part of the employer to look into a formal grievance or complaint.
• Changing the working conditions without first consulting with you.
• Demoting you without giving fair warning.
• Compelling you to work under conditions that violate health and safety laws.

Apart from these situations, there are subtler ways by which employers may be brought before a judge for a constructive dismissal claim. As said before, the existence of a pattern that could lead to a “final stroke” scenario may be sufficient for an employee to terminate the employment relationship. Some examples of this include the subjection to frequent unfair criticisms or failure to provide enough support for you to be able to do the job adequately.

The case for these types of constructive dismissals can be even stronger if you have already complained about these issues with your employer but they have hesitated from taking decisive actions aimed at resolving them.

When to Resign

Ideally, you should attempt to resign as soon as possible. There is no set time by which you would forfeit your right to take legal action for constructive dismissal. Notwithstanding, after a prudential period of roughly four or five weeks, your chances of making a successful constructive dismissal claim diminish, and you may be asked to justify your prolonged wait.

Nonetheless, you can stall a potential waiver or tacit acceptance by sending “warning signs”. These can range from filing a grievance and waiting for it to be decided to sending notices that, should the situation not improve, you reserve your right to resign and make constructive dismissal claims. You may likewise leave negative remarks (respectfully, that is) during performance reviews to make known that you’re still displeased.

Lastly, you could bring up time spent on sick or parental leave to justify your delay to the judge, as well as any other similar circumstances that could be level-headedly used as valid reasons in this regard.

It’s normal to remain unsure about whether to resign right away or wait, which is why it’s crucial to get legal aid as soon as possible to define what to do next. You can call us for timely advice at +44 (0)333 414 9244.

How to Resign

Resignation should always be done in writing using unequivocal terms. It would be beneficial to state the reasons behind the decision, always in a polite tone. Be mindful that this document will serve as a primary document in an employment tribunal proceeding.

Make sure to print two or three copies of the letter and have your manager sign a receipt or place a stamp on your copies, preferably with the receipt date.

Since no two situations are the same, you should always try to seek professional counsel on how to draft a resignation letter that tackles any possible loopholes.

How To File an Internal Grievance

If you decide to lodge a complaint instead of resigning outright, you can use the regular channels that are described either in the staff handbook or the Acas Code of Practice. A formal grievance must always be submitted in writing, specifying the date and details of the events or matters being raised.

The employer should receive the grievance and decide it on reasonable grounds after a thorough investigation, even if they may think that the grievance is unfounded. If that’s not the case, you could add that to the list of actions that further warrant your resignation and can bolster your constructive dismissal allegations.

Of course, you could still resign at any time, even if a grievance procedure is underway.

What Steps Would I Need to Take Before I Claim Constructive Dismissal At an Employment Tribunal?

Before claiming constructive dismissal, you always have to inform Acas (Advisory, Conciliation and Arbitration Service).

Acas is a public body that’s sponsored by the UK’s Department for Business, Energy and Industrial Strategy and is tasked with meddling in workplace disputes to attain amicable resolutions. It’s also responsible for ensuring that judicial bodies entrusted with employment matters are not clogged with cases that could otherwise be solved outside the courts.

After informing Acas, they will offer Early Conciliation. If this stage is unsuccessful, they will issue an Early Conciliation Certificate, which you would then attach to your claim form.

Is There a Time Limit for Bringing a Constructive Dismissal Claim to the Employment Tribunal?

You should lodge the constructive dismissal claim at the Employment Tribunal within a period of three months minus one day from the date when the employment effectively ended. This is not to be confused with the period in which one ought to resign.

However, depending on how the Early Conciliation procedure develops, this period could be extended and a later expiry date would be set.

What Happens After My Claim is Received by the Tribunal?

If the tribunal admits your claim, they will send a copy of the claim form to the employer, who will have to respond within 28 days of reception unless they ask for more time. In addition, another copy will be sent to Acas and conciliation will always be open to both parties at any stage.

The tribunal may also reject the claim or ask you to amend or clarify certain aspects of it. You may likewise resubmit or amend on your own accord before the deadline given by the tribunal.

What Compensation Would I Receive?

If the judge decides in your favour, you’re entitled to the following:

• Notice pay
• Waiver of post-termination restrictions (if any)

Apart from those two, you can expect to receive the following:

• A “basic award” that takes into account multiple factors such as age, week’s pay, and length of service, up to a maximum of £571 weekly per each complete year of service (this amount is increased in April of each year.)
• Any compensatory awards that result from loss of wages (including benefits such as the company car, health insurance, gym subscriptions, etc.), future wages, statutory rights, and pensions.

The compensatory amount is calculated via a speculative process and will hinge on your possibility of mitigating losses by finding another job before the date of the first hearing. The maximum amount you can get for compensatory awards is either £93,878 or the equivalent of a 52-week gross salary (whichever is lesser).

Our Experts Can Help

Whenever a subject of constructive dismissal arises, there can be genuine confusion on how to proceed. Oftentimes, determining whether an employer’s behaviour can be presented as a claimable offence before a tribunal or not is a tricky endeavour, especially if you are not savvy on how these matters work in employment and case law.

Our employment solicitors can boast of having the necessary pedigree, skills, and experience to deal with the most complex cases of constructive dismissals involving a wide array of contract breaches, ranging from the most basic violations to the most subtle ones. They’ll consequently be able to deliver opportune guidance on how to obtain the best results from a constructive unfair dismissal process.

You can find out more about our services and schedule an appointment with our professionals by calling us today at +44 (0)333 414 9244.