What is constructive dismissal?
Constructive dismissal occurs when an employee is effectively forced to leave work because of the employer’s conduct. The employer commits a serious breach of employment contract which entitles the employee to leave. The employee can then make a formal claim for constructive dismissal.
What amounts to a serious breach that could lead to constructive dismissal?
Serious breaches of contract that can result in constructive dismissal include:
- non-payment of wages;
- making unjustified deductions outside of the employment contract;
- imposing a unilateral change in working conditions which renders the employee’s job difficult;
- intimidation, bullying and aggression from colleagues that remains undealt with;
- dangerous working conditions;
- unlawful discrimination;
- unreasonable disciplinary proceedings;
- false accusations of theft or incompetence – if the employee is then singled out for humiliation or is subjected to arbitrary and grossly unfair demotions, constructive dismissal can result.
An employment contract implies a duty of mutual trust and confidence between the employer and employee. To succeed in a constructive dismissal claim, the employee must show that there was a breach in this duty.
Therefore, it is very important for the employee to have a copy of their written employment contract. If you do not have one, ask for one as soon as possible. Check its terms to see if there are any terms allowing your employer to take certain steps that you believe amount to a serious breach.
What is required to show constructive dismissal?
In a formal claim, there are three elements that must be satisfied to prove constructive dismissal. Firstly, the employee must prove that the employer is in serious breach of contract. This is called a ‘repudiatory breach’ which justifies the employee leaving.
Secondly, this breach must be the reason for the employee being forced to leave. Thirdly, the employee must not delay in accepting the breach and leaving. If they do delay unreasonably, this could be considered as waiving the breach and the contract continuing.
If you are considering leaving because of a serious breach of contract by your employer, it is important to take legal advice as early as possible. You will not want to risk your employer claiming that you have decided to remain in your job by waiving the breach.
Are there any alternatives before leaving?
Leaving employment is a serious step and should not be done lightly. It is worth considering the alternatives before deciding that you have no option but to leave and claim constructive dismissal. You may be able to resolve the situation without having to leave; or you may be able to negotiate an acceptable exit so that it is worthwhile to both you and your employer for you to leave on agreed terms.
Talk to your employer first. This may be your line manager, supervisor, human resources – or the person in charge (depending on the size of the organisation). If this is unfruitful, speak to your union rep if you are in a union.
What remedies are available for constructive dismissal?
You will need to make a formal claim to the Employment Tribunal. This is a type of court that will consider the case and make its decision on whether or not your claim should succeed.
There are strict time limits in bringing a claim to the Employment Tribunal. Also, you must have been continuously employed with your employer for at least 23 months and 3 weeks. For further information visit our page about making a claim for constructive dismissal.
If you succeed in your claim, the Employment Tribunal could order your reinstatement into your old job, together with compensation for any loss of wages. Alternatively, you could be re-engaged in a similar job. However, the reality is that in most cases neither party want to re-establish a working relationship because trust has gone.
Usually, compensation will be awarded instead. Compensation is made up of a basic award (calculated by taking into account your age, years of service and average weekly pay); and a compensatory award. The compensatory award is currently capped at £80,541.
Who can I contact for help?
To make a claim, you are best seeking the advice of an employment solicitor immediately after leaving. They will take full details of the background to your leaving, and advise you on the merits of your case.
You can also speak to the Advisory, Conciliation and Arbitration Service (Acas) for advice, and you can also contact Citizens Advice which provides voluntary advice and assistance on legal and financial issues. In certain professions, there may also be an association or regulatory body who can give you specific advice.
Can you claim benefits after constructive dismissal?
Unfortunately, if you leave your job, there can be a delay of up to 26 weeks before you can receive Jobseeker’s Allowance. However, it is important for you to explain the circumstances regarding your departure from employment to your benefits office. If you will be experiencing particular hardship because of delays accessing benefits, speak to your benefits office or Citizens Advice about alternative benefits you may be entitled to.