Constructive dismissal advice for employees

This blog will provide constructive dismissal advice for employees. It will answer common questions that employees ask relating to constructive dismissal and explain next steps.

What is constructive dismissal?

Employees may well have heard the term constructive dismissal, but what does it mean?

For a constructive dismissal claim to succeed. the conduct of the employer must be sufficiently serious to entitle the employee to resign (such conduct is typically referred to as a repudiatory breach).  In such circumstances, the employee should act swiftly in response to the conduct, otherwise it may be deemed that the employee chose to waive the breach by the employer.

When such conduct occurs, even though it is the employee that leaves, it is the employer who is responsible for the dismissal because of the conduct referred to above.

How bad does the conduct in a constructive dismisal case need to be?

The answer to that question has been expressed in many different ways and could easily take up a whole blog on its own. However, one example is an employer ‘shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee’.

The above illustrates that the nature of the conduct must be fundamental in nature. Therefore, trivial acts, or unreasonable behaviour of a less serious kind, would not suffice.

There is not a definitive list of conduct which would (or would not) be regarded as a repudiatory breach. Whether or not the actions of the employer were sufficiently serious to be regarded as such will ultimately be a matter for an Employment Tribunal to decide. The Tribunal will consider all the circumstances of the particular case, and make a decision based on the evidence before it.

Does the conduct complained of in a constructive dismissal case have to be a single act?

No. The conduct could consist of a single act or be part of a course of conduct consisting of a series of acts.

A basic example of a potential repudiatory breach, relating to a single act, could be an employee being told to work despite the necessary health and safety equipment not being available. The employee does not do what is requested and resigns. The employee then brings a claim alleging constructive dismissal.

It may seem clear what the outcome will be but is the situation really that straightforward? For example, the safety equipment may have been available, but the employee did not wait long enough to find out the situation, or perhaps what the employee wanted was over and above what the applicable rules required? It will ultimately be for an Employment Tribunal to decide whether the conduct of the employer was sufficient to entitle the employee to resign.

A situation involving several acts is perhaps more complex than the single breach referred to above. For example, which acts contribute towards the conduct complained of? How does that series of acts affect potential deadlines etc. These issues may well impact on a potential claim, and therefore gaining advice at an early stage is likely to provide clarity.

What is the difference between unfair dismissal and constructive dismissal?

As said above, in constructive dismissal cases the employee resigns because of the employer’s conduct. Whereas, in unfair dismissal cases the employer dismisses an employee for a particular reason such as misconduct, and the employee would argue that the dismissal was unfair because, for example, a fair process was not followed. For more information on the reasons for dismissal read our blog Reasons for dismissal of an employee.

If I pursue a constructive dismissal claim how much could I receive?

This is a question that is impossible to answer accurately without having access to the necessary information. However, there are statutory limits on the compensation relating to constructive dismissal and unfair dismissal claims.

It is necessary to fully understand the circumstances of a potential case so that all relevant information is captured fully, and the claim is properly valued. For example, depending on the circumstances, there could be additional elements to the potential claim, such as discrimination, which the statutory limit to the compensatory award does not apply to.

I don’t have the money to pay for advice, can you help me?

Absolutely!

We understand that, in such circumstances, many people may not have the money to pursue a claim. For example, people in such a situation may well not have found another job yet and therefore need to conserve any money available to pay bills etc.

We are happy to consider taking on cases on a no win no fee basis.  Where a case is taken on under such an arrangement, our fee would be a percentage of any award we secure for you. In the event that your claim is unsuccessful, there would be no charge to you.

Are there time limits for constructive dismissal claims?

Yes, there are strict time limits for bringing Employment Tribunal claims such as constructive dismissal. It would be wise to gain advice as soon as possible in order to find out the applicable timeframes and establish next steps.

Can anyone bring a constructive dismissal claim?

No, in order to bring a constructive dismissal or an unfair dismissal claim, it is necessary for an employee to have two years’ continuous service. However, there are other claims that an employee can pursue from day one. That being so, as said earlier, it would be sensible to gain advice as soon as possible so that all aspects of a potential claim are considered fully. For more information about the circumstances in which a potential claim could be made without the two years continuous service requirement, view our blog dismissing staff within 2 years.

Plotkin and Chandler works exclusively in the areas of HR and employment law. We represent both employees and employers to bring and defend Employment Tribunal claims, such as constructive dismissal. To discuss your needs, and the ways in which we can help, call us on 020 3923 8616 or email us at info@plotkinandchandler.com.