What is constructive dismissal ?
Constructive Dismissal arises when an employee is left with no choice but to resign from their job due to the conduct and behaviour of their employers. When this happens it is treated as if the employee was dismissed by the employer themselves, allowing for a claim to be made for Unfair Dismissal or Wrongful Dismissal, should the appropriate criteria be met.
To be able to claim constructive dismissal is it necessary to show that the conduct and behaviour of the employer was so bad that it can be considered to be a fundamental breach of contract. Examples of such conduct include:
- They stop paying your wages.
- They force you to accept unreasonable changes to your conditions of employment relating to matters such as location, working hours or responsibilities.
- They fail to stop bullying or harassment against you within the workplace.
- They make you work in dangerous conditions.
- They set you impossible targets, or other similar actions which make it impossible to perform your duties.
Think carefully before resigning (and take advice)
Conduct leading to constructive dismissal may either be through one serious incident or it could be the last in a series of minor incidents that overall can be considered to be serious.
It must be stressed that if a situation arises where you feel you must leave your job, that final decision should be the last resort. Unless the conditions are absolutely intolerable, any tribunal will have expected you to have spoken with your manager or human resources department to try and resolve the problem. By being constructive and attempting to resolve the problem, any Tribunal will be more favourable should you then bring a claim for constructive dismissal.
Once decided, you need to act fast
If the matter cannot be resolved, then it is advisable to leave the job as soon as possible. This is because an employer could argue that by staying you agreed and accepted the conduct or behaviour and therefore there are no grounds for constructive dismissal, however you should be careful not to ‘jump the gun’ and resign before the actual breach of contract takes place. Always seek legal advice as every set of circumstances is different and you want to make sure that you are acting in a way that is best for you. Once you resign you forgo your employment rights so you must seek advice before doing so.
How does it work in the Employment Tribunal ?
A claim to the Tribunal for constructive dismissal must be made within 3 months from the date of termination, after which they are unlikely to extend the time period to allow you to make a complaint.
It must be noted that since constructive dismissal merely proves that you were dismissed, it is still necessary to show the other elements needed to bring a claim for unfair or wrongful dismissal. These include:
- Showing you were actually employed by the employer and were not simply a casual or temporary worker, or self employed freelancer.
- That you were employed for at least 1 year (unless you fall under certain exceptions)
- That the employer had no good reason to dismiss you.
If it can be shown that you fulfil all the criteria then you would be able to make a claim for constructive dismissal.
Compensation for unfair dismissal
Compensation for constructive dismissal is as it would be for any other unfair or wrongful dismissal. A Tribunal could award one of 3 remedies:
- Reinstatement – placing you back into your old job and paying compensation for loss of wages for the time spent out of the job.
- Re-engagement – placing you in a similar job with the employer.
The most common of these remedies is that of compensation. Constructive dismissal is no different than any other claim under unfair dismissal where the compensation is based upon the actual loss suffered, primarily being your loss of earnings, including possible future earnings that you would have had from the time you were dismissed until the time you were able to secure another suitable position. This is to put you back in the position you would have been in had you not been unfairly dismissed.
Any award of compensation is made up of a basic award and a compensatory award. The maximum compensatory award that a Tribunal can now give is £68,400.
Need to mitigate loss
It should be noted that as with any type of claim, you must mitigate your losses. In this case you would need to try and find suitable employment elsewhere to prevent your losses increasing.
How can Employment lawyers help ?
Darlingtons Solicitors provide a substantive service to our clients in this area, including:
- Advice as to your position in a job and whether there are grounds for constructive dismissal.
- Advice on how to attempt to resolve any issues before resigning.
- Mediating between the parties to come to a resolution.
- Advice on making a claim to the Employment Tribunal
- Guiding you through the process of a claim, from application to final hearing.