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What is Constructive Dismissal?

Constructive Dismissal is where an employer has committed a serious breach of contract, entitling the employee to resign in response to the employer's conduct. The employee is entitled to treat him or herself as having been "dismissed" and the employer's conduct is often referred to as a "repudiatory breach".

It is not enough to show merely that the employer has behaved unreasonably - it must be a fundamental breach of the implied term of trust and confidence between the employer and employee. Furthermore, the employee must have left because of the breach and must make it clear when he resigns that he regards himself as having been "constructively dismissed". Furthermore, the employee must be careful not to waive the breach. This can happen where there is a long delay in resigning in response to their employer's breach- or anything which signals an acceptance of the breach.

Examples of breaches of contract by an employer entitling an employee to claim constructive dismissal include:

  • Reduction in pay
  • Demotion without reason
  • Unreasonable disciplining of the employee
  • Complete change in the nature of the job
  • Harassing or humiliating the employee
It may not just be one incident that amounts to a repudiatory conduct by the employer- sometimes there is a continuing pattern of behaviour or incidents which, taken as a whole, amounts to such conduct. In these circumstances, a tribunal may consider that such previous breaches which might otherwise have been considered waived or accepted by the employee, should not be treated as "revived" and part of a continuing course of conduct.
 

What is the criteria for being able to make a claim for constructive dismissal?

The employee must have been continuously employed for a period of 11 months and 3 weeks in order to bring a claim for constructive dismissal if you were employed before 6th April 2012, or 23 months and 3 weeks if your employment commenced after this date.

It is preferable that the employee lodges a formal grievance against the employer before he or she resigns unless there is good reason not to do so. This will give your employer an opportunity to resolve disputes. Failure to lodge a grievance before issuing proceedings would entitle an employment tribunal to reduce any damages you are awarded by 25%. In addition, the lodging of a grievance provides a good springboard for negotiations to take place to resolve the dispute by other means, including the mutual termination of employment upon suitable terms.

 

What remedies are available for constructive dismissal?

The remedies available for constructive dismissal are exactly the same as those for unfair dismissal.

 

When should a claim for constructive dismissal be made?

A claim for constructive dismissal should be made to the Tribunal within a period of 3 months less 1 day from the date that the employee resigned. 

 

For further information, please call Anthony Gold on 020 7940 4000

or submit an employment law enquiry form.

 

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Landau Zeffertt Weir Solicitors

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