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Constructive Dismissal

Constructive dismissal in simple terms is when an employer acts in a way that permits or pushes an employee to resign. To claim for Constructive Dismissal you need to have been employed for more than 1 year. In the sections below we give examples of Constructive dismissal to make it easier to understand if you have been a victim of constructive dismissal.

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To claim constructive dismissal the employer has to have fundamentally breached the employee’s Contract of Employment either in a written term (express term), or in an implied term.

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We have included a series of constructive dismissal examples to help you decide if this is happening to you. Lets now deal with what could amount to a fundamental breach of contract; examples of this are numerous but let me give an example.

example

Mabel is the Assistant Manager of Betty’s Better Bit of Butter Ltd.  They manufacture butter and other dairy products.  She has worked in this role for 10 years. The New Managing Director Nick McNasty does not like Mabel and considers she is too friendly with the staff.  He tells Mabel that she is not up to the job and he demotes her without any disciplinary process. He has not sacked her but the demotion would amount to a fundamental breach of contract entitling Mabel to resign and claim constructive dismissal.

Other examples of constructive dismissal would include not paying a contractual bonus reducing the employee’s pay without having an express contractual right to do so.

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Remember these are examples of breaches of express contractual terms the employer can also breach implied terms.

The most well known implied term in all Contracts of Employment is the term of mutual trust and confidence. That is that both the employee and employer must behave reasonably and fairly when dealing with each other. This does not mean that all acts of unfairness would amount to a fundamental breach of contract only the most serious acts could. For example, if an employer was simply a bit rude on one occasion with an employee then this would probably not amount to such a breach. If however he was consistently bullied the employee this certainly would amount to a fundamental breach of contract.

The employee cannot dither or delay in resigning if such conduct occurs as delay can amount to a deemed acceptance of the breach. If this sort of thing is happening to you then do NOT delay as if you do then you may not be able to claim constructive dismissal.

Lets go back to the Mabel example. If she is demoted and continues to carry on working there for some months, then it is likely that she would be deemed to have accepted the breach of contract and will not be able to pursue a claim for constructive dismissal.

The Last Straw concept;
This is were there are occasions when an employee can resign and claim constructive dismissal even if the last act did not on its own amount to a fundamental breach of contract. Say Mabel does not resign when she is demoted but she over time considers her employer is picking fault at every opportunity and blaming her for issues. Then providing she can prove it and show this then even if the last act on it’s own is relatively minor provided it is the principle cause for her resignation then she can still claim constructive dismissal. She does need to show one of the acts was a fundamental breach of contract but in Mabel’s case she was demoted and so she would have a claim.

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You will gather that constructive dismissal is complicated and before you resign you should try and get legal advice on whether you would have a claim or not and that you will need some help to get the ideal wording for your resignation letter.

The fact is that in constructive dismissal the employee has to prove their case in order to succeed. This is why the employee in such a case goes first at the Tribunal and gives their evidence before that of the employer. In some cases if the employer’s lawyer thinks that the employee has failed to establish a prima facie case then he will make a submission to the tribunal that the employer has no case to answer. Prima facie means put forward sufficient evidence that if the employer cannot explain or refute the allegation then the employee would win the case.

In conclusion in proving a case of constructive dismissal the resignation letter should normally in clear terms spell out in basic terms why the employee is resigning and what actions caused the resignation. Under the new Dispute Resolution Rules the employee must now raise a grievance and complain about the employers actions and wait 28 days to give the employer the opportunity to conduct the internal grievance process before a claim can be lodged at the Tribunal.

The normal 3 months time limit runs so that any claim must be submitted in time. There is an exception if the grievance process is still ongoing when the first 3 month time limit expires but my advice would be do not delay and get the tribunal claim in after the first 28 days and before the 3 month time limit expires even if the internal process is still not concluded. Practically this is because if the grievance result was to conclude say a couple of days before the 3 month time limit expires then you would have to rely on asking the Tribunal to permit the claim on the basis that it was not reasonably practicable to lodge the claim in time and clearly it was.

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Since 2004, when we founded this site we have helped thousands of people with employment issues. If you do nothing about your employment problems then things can only end in your employers favour - probably not what you want. With the experience of thousands of cases we can help you fight your case and get a good result. To help you, we need to know what is happening to you so that we can help - It will take you a couple of minutes to complete the Claim Evaluator form that will enable us to help you

Tell us what happened and we will get the most appropriate Employment Law expert to call you immediately and tell you what can be done, click here

To see if you have a claim click here to use our Claim Evaluator

If you are facing redundancy visit our redundancy pages.

If you are being unfairly Dismissed, visit our Unfair Dismissal pages.

If you are being disrciminated against due to race, visit our Race Discrimination pages.

If you are considering going to an Employment Tribunal then see our Employment Tribunal pages

If you are facing Constructive Dismissal, visit our Constructive Dismissal pages.

If you are losing your job due to Misconduct or Gross Misconduct, visit our Misconduct or Gross Misconduct pages.

If you are losing your job due to Capability then visit our Capability pages

If you think you may be suffering from disability discrimination then visit our disability discrimination pages

If you are being asked to sign a Compromise Agreement, then visit our Compromise Agreement pages.

If you are being put on Garden Leave then please see our Garden Leave pages

 


IAMBEINGFIRED Disclaimer
The site author/owner has endeavoured to give clear information to benefit the reader. The information is no substitute for obtaining specific advice about any claim you may have from a person qualified to give it. The examples, and circumstances described etc bear no relation to any actual case and any resemblance to real circumstances is purely accidental and unintentional. The site author/owner accepts no liability for any mistake, error or inconsistency in the text and the reader should ALWAYS OBTAIN specific advice about his/her own situation. In order to assist the reader, you can give your details so that a qualified advisor can call you free of charge and assist you further via CLAIM EVALUATOR