Constructive Dismissal

What is the definition of constructive dismissal?

Constructive dismissal is when an employee is forced to leave work due to the conduct of his employer. It involves the resignation of an employee in response to a serious breach by the employer of the terms of the employment contract.

What are the necessary components for constructive dismissal?

There are three elements that must be present to prove constructive dismissal. First, the employee must prove that the employer is in serious violation of their contract. Then this violation must be the reason why the employee was forced to leave. And finally, the employee must prove that they had nothing to do with the contract violation. Meaning, they did not behave in such a way as to bring on the violation committed by the employer by an implicit acceptance of the contract breach.

In relation to the last statement, it must be emphasised that the employee should seek advice early in the game as the time of resignation is quite critical. Too early in jumping the gun can lead the employer to claim that there was no coercion or breach. Too late and the employer can claim that you stayed on because you implicitly agreed to the breach or modification of contract. So consulting with other associations and even solicitors may be the prudent thing to do.

Recent rulings have highlighted the need for the breach to be serious and must show that the employer has no intention of honouring the subject provisions of the contract.

What are some examples of breaches of contracts leading to constructive dismissal?

Serious breaches or violations of contract that can lead to constructive dismissal can include incidents such as non payment of the employee’s wages, withholding or making unjust deductions outside the employment agreement. It can also be through the imposition of a change in working conditions not stipulated in the employment contract which render the employee’s job difficult. This could be relocating the place where the employee is supposed to report for work. Intimidation, bullying and aggression from other people in the workplace can also be cited here. As it is being forced to work under conditions that pose danger to the worker, assuming that these conditions were not mentioned in the employment contract. False accusations of theft or incompetence are also possible examples. Then if the employee is unduly singled out for humiliation or subject to arbitrary and grossly unfair demotions these can likewise be possible causes as well.

In the more recent cases of constructive dismissal, it showed that the employee must prove that there was a breach in the duty of both employer and employee to exhibit mutual trust and confidence. It was shown that an employment contract implies the existence of mutual trust and confidence between the employer and employee. So any action that serves to undermine or destroy this trust and confidence is considered sufficient for claiming constructive dismissal. However, it has been shown that these circumstances can be hard to prove so the sooner the employee can seek advice, the better it will be for their case.

It is very important for the employee to secure a copy of his employment contract. Once they have it, it is best to go over it well to ensure that there is nothing stated there that allows for or implies that the employer has the right to make such a breach.

If you have a solicitor you can consult informally at this point, it may be the best recourse as it can dictate your next move. Aside from determining the existence of a valid constructive dismissal scenario, the solicitor can also give advice with regard to the time frame wherein corrective measures can be attempted. After all, beyond that time frame, there may no longer be any case to speak of.

What are some alternatives before leaving employment?

Leaving employment immediately is seldom the best alternative and before doing so, it may be good to try a few things first.

You may want to talk to your manager or boss first. Should this fail, talking to the human resources people may be a good recourse.  Should that still result in a stalemate, then it may be worthwhile to pursue the matter with the employment union people.  The very last resort would be to seek arbitration.  If your trade union has a solicitor available, you should consult with them first in order to determine the amount of time you have to go through the process. This may be critical to your case and the timing or lack thereof may result in rendering your case toothless

What are your remedies after a constructive dismissal?

Approaching the Employment Tribunal is probably the first thing the employee should do. Concurrent with this, the employee can consult a solicitor as well. This should be done immediately after the dismissal. Like the decision to leave, the decision to seek remedies is also subject to time constraints. Taking too long before seeking assistance could indicate an acceptance of the situation. So keep in mind that time is of the essence.  For further information see ‘making a claim for constructive dismissal.

Are there agencies you can approach for assistance?

The first ones you should approach should be the Citizens Advice Bureau or ACAS which is the Advisory, Conciliation and Arbitration Service. Both of these agencies give free advice on the matter of constructive dismissal.

Your trade or employees’ union can be a possible source of assistance as well. And eventually, you may have to involve the Employment Tribunal who may be able to provide some intervention or assistance.

There may also be associations unique to the employee’s profession which may be able to help as well.

Can you claim for benefits after constructive dismissal?

Unfortunately, if you quit your job, receipt of your Jobseeker’s allowance can be delayed for a period of 26 weeks. It is important for you to inform them of the circumstances regarding your departure from employment. It may be necessary to consult with the Employment Tribunal too.

In the event that you are unable to claim your Jobseeker’s allowance, then you may be constrained to apply for Hardship benefits which are essentially a reduced version of a Jobseeker’s allowance