Constructive Dismissal – What’s It All About?
The Concept
Constructive dismissal is much misunderstood but, in simple terms, occurs where the action of an employer is so intolerable that the employee could not reasonably be expected to remain in its employ. In that situation the employer is viewed as having committed a fundamental breach of the contract of employment.
Example 1
You have a dispute at work and the person with whom the dispute takes place punches you on the nose. You report the issue to your line manager who tells you that it’s your own fault for arguing with your colleague and that he or she will do nothing about it. If it happens again it’s your own ‘look out’.
No reasonable person could be expected to stay in a workplace where casual physical violence is perpetrated and tolerated. Your employer would have failed in its duty to safeguard your health and welfare and the trust and confidence essential to the employment relationship would have been destroyed.
Example 2
You are the recipient of unwanted sexual advances from your employer. These are witnessed by other employees. You make clear to the individual that the approaches are unwelcome and want them to stop. Despite this the problem continues. You feel uneasy about even coming to work.
Your employer has breached the implied (unwritten) term of mutual trust and confidence in everyone’s contract of employment and you cannot be expected to continue working in those circumstances.
The Remedy
In these circumstances you would be entitled to resign and ask the Employment Tribunal to award compensation for your unfair dismissal, caused by your employer’s actions.
The Problems
However, Constructive Dismissal claims are notoriously difficult to prosecute successfully. To have any likelihood of success in a claim for Constructive Dismissal you would need to show that:
1. Your employer committed a fundamental breach of your contract of employment;
2. You did nothing to accept the breach;
3. The breach was so fundamental and intolerable that you had no realistic alternative but to leave because of that breach;
4. The breach was the real reason for your resignation;
5. You acted as soon as you could.
What this means in everyday English is that an employee cannot resign because of a relatively trivial disagreement with an employer and that an employee mustn’t have encouraged or even simply have accepted the actions he or she complains about for any material length of time.
In general, an employee would be expected to have left as soon as the position became intolerable. This is logical because, after all, if things were so bad you couldn’t stay working for an employer, you would hardly want to work your notice. This issue of delay is complex and requires careful advice.
Equally important, the employee can’t fabricate a set of circumstances to justify the claim for constructive dismissal. Employment Tribunals will spot immediately someone who wanted to leave an employment all along and then made up a set of allegations designed to justify the position. They would look for an extreme set of circumstances, not of the employee’s making, that made life at work intolerable.
Example 3
You believe your working environment encourages bullying and you pursue a complaint through your employer’s grievance procedure designed to protect you from future issues. Your grievance fails initially and your appeal is rejected too; you come to the conclusion that you have to leave.
You then find another job and leave without giving notice but with the intention of claiming constructive dismissal.
In these circumstances the claim could fail simply because clearly you felt able to continue working until you found another job, indicating that things were perhaps not so bad as to amount to there being a fundamental breach of contract and that in reality you had left for some other reason. On the other hand, it could of course be argued that you were driven to look for the other job out of desperation, had done all you could reasonably be expected to do to persuade your employer to put things right and ultimately had no choice. The claim might then succeed; provided of course that there was a fundamental breach of contract.
An Anticipatory Breach
Legal jargon doesn’t help normally but there’s no better way to describe this.
Sometimes an employer hasn’t actually committed a fundamental breach of the contract of employment but has shown in some way that it intends to do so in future. This could allow an employee to resign and claim constructive dismissal.
One consideration is important here: you can’t resign before the employer’s final intentions are clear. The Employment Tribunal would expect the employee to raise the matter with the employer and try to use the employer’s grievance procedure to try to negotiate a solution.
If, having done that, it still looks as though the employer is set on a fundamental breach of contract, resigning and claiming constructive dismissal might be an option but you should always seek advice first.
Summary
Most people have issues at work at some stage in their working lives. Sometimes they are annoyed and sometimes they’re very angry or depressed. Occasionally they may feel they have to look elsewhere for other jobs. None of these states should make an employee even think about constructive dismissal unless the employer has acted in some extreme way that no employee could possibly be expected to accept.
Constructive dismissal claims are rare; in part because most employers have more sense than to behave in extreme ways but also because claims can be difficult to justify. Consequently, any adviser would be very wary about recommending resignation in the hope of a claim succeeding, unless every box was ticked.
If you think you might be in a situation of the sort I’ve described above, please contact the Union’s Advice Team on 01234 716005. We’d like to hear from you; ideally as soon as possible but certainly well before you begin considering resignation.