Constructive Dismissal
Do you find yourself caught in a Negative Workplace?
You may be suffering what is known as Constructive Dismissal if you feel your company’s unfair behavior leaves you with no other choice except resignation. If you are experiencing such issues, it may be beneficial to consult our employment law expert.
Constructive Dismissals
Constructive Dismissal is the process in which an employee is compelled to leave their job due to the actions of their employer, thereby significantly breaching the employment contract. This may occur when agreed salaries are not paid, when ongoing bullying or discrimination is tolerated, or when major and unjustified changes are made to your working conditions without your consent. It is a situation in which the behaviour of the employer becomes unacceptable.
Recognising Your Rights
Should you believe you have been constructively dismissed, it is important to be aware of your rights. Since this type of unfair treatment may be subject to legal action, filing a claim can be difficult, and success is not guaranteed. To properly evaluate your situation and decide on the best course of action, you must seek independent legal advice.
Correct Procedure
Before taking any definitive steps, consider addressing the matter directly with your employer. Initiate a conversation to express your concerns; often, honest communication can help resolve issues without further escalation. Should informal discussions fail to produce a satisfactory resolution, you may need to file a formal grievance report, ensuring that you precisely record the specific violations and their effects on you.
If you choose to resign on the grounds of this dismissal, it is crucial to obtain legal counsel beforehand and to carefully document all pertinent events and your reasons for leaving. This record will be invaluable should you decide to pursue legal action. Alternatively, you may wish to explore settlement agreements as a means of resolving your dispute without resorting to prolonged litigation.
Dealing with a case of constructive dismissal can be both frightening and taxing. Nonetheless, by understanding your rights and acting deliberately, you can safeguard your interests and work towards a just and fair outcome.
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Frequently Asked Questions
What is the difference between unfair dismissal and wrongful dismissal?
Unfair dismissal is a statutory claim under the Employment Rights Act 1996. It asks whether the employer had a fair reason and followed a fair procedure. Wrongful dismissal is a contract claim asking whether the employer dismissed without giving the notice or following the disciplinary process required by the contract. The two can overlap, and many tribunal claims plead both, but the legal tests, time limits, and remedies are different.
Do I have to use ACAS Early Conciliation before issuing a tribunal claim?
Yes. Before bringing an employment tribunal claim you must notify ACAS and obtain an Early Conciliation certificate. ACAS will offer free conciliation between you and your employer to see if the dispute can be resolved without litigation. The conciliation period pauses the tribunal time limit, but the limit still expires soon afterwards, so do not delay.
How long must I have worked for my employer to claim unfair dismissal?
For an ordinary unfair dismissal claim you need at least two years of continuous service. There are important exceptions: dismissals for whistleblowing, discrimination, asserting a statutory right, trade union activity, pregnancy, or health and safety grounds are automatically unfair from day one of employment, with no service requirement.
What dismissals are automatically unfair, regardless of length of service?
Examples include dismissals connected to pregnancy or maternity, taking statutory family leave, making a protected disclosure (whistleblowing), refusing to work in breach of health and safety law, asserting a statutory right such as the minimum wage or paid holiday, trade union membership or activities, and exercising rights under the Working Time Regulations. If your dismissal falls into any of these categories, you can claim from day one and the financial limits on awards can be higher.
What remedies are available if my tribunal claim succeeds?
Possible remedies include reinstatement to your old job, re-engagement in a comparable role, and compensation. Unfair dismissal compensation usually has two parts: a basic award based on age, length of service, and a week’s pay (subject to the statutory cap), and a compensatory award for loss of earnings and benefits. Discrimination dismissals can also attract injury to feelings awards. The cap that applies depends on the year of dismissal.
How quickly do I need to resign to claim constructive dismissal?
To claim constructive dismissal you must resign in response to the employer’s repudiatory breach and you must not delay long enough to be seen as accepting the breach. There is no fixed rule, but acting within days or a few weeks, and not continuing to perform the contract as if nothing had happened, helps preserve the claim. Take advice before resigning so that you protect your position.
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