Constructive Dismissal covers the situation where your employer has made it impossible for you to stay in your job – but hasn’t dismissed you himself. If you resign in this situation, it will be treated as a dismissal – a ‘constructive’ dismissal. Your employer’s behaviour must be a serious breach of your contract. This could be a breach of an express term, such as the amount of pay you will receive, or of what are known as ‘implied terms’ – such as the obligation of mutual trust and confidence.
Your employer’s behaviour must be so bad that you can assume that he or she no longer recognises the existence of the contract of employment between you. While any breach of contract by your employer will be worrying, not all breaches of contract will be serious enough to warrant you resigning.
Every constructive dismissal case will be different. Some actions by your employer that could amount to a constructive dismissal include:
- Refusing a request for flexible working
- Trying to force you to accept a change in working hours
- Demoting you without following a process
- Harassing or bullying you
- Failing to take a grievance seriously
- Reducing your pay without consultation
- Introducing new duties into your role
- Taking performance management action against you when it isn’t appropriate
- Unlawfully discriminating against you
If you are contemplating resigning as a result of what is going on at work, and the behaviour you are experiencing, we can help you understand whether you have been constructively dismissed. We can also guide you through the next steps you need to take. It’s also worth remembering that as well as a claim for constructive dismissal, you may have other claims, such as a discrimination claim, arising out of the same circumstances.
Constructive Dismissal Claims
If you find yourself in an intolerable position at work, you must first do whatever is right for you. Don’t underestimate the impact that stress at work can have on your health. While we would never encourage someone to resign without thinking it through first, your main concern must be you, your health and the impact the situation is having. If, as a result, there is a possibility that you could be entitled to compensation, you should consider this seriously – particularly if you find yourself out of work. We can help you assess the chances of succeeding in a constructive dismissal claim, and the likely compensation you might receive.
You should never resign from your employment and assume that you will be able to claim compensation for constructive dismissal. However, if you find yourself in a situation at work where your employer is ignoring your contract of employment and which you are unable to tolerate any longer, and feel your only option is to resign, it may be worth considering a claim for constructive dismissal.
Constructive dismissal claims can be trickier to win than some other employment law claims. You must be able to show that your employer acted in breach of your contract of employment, and you resigned because of that breach. This can be difficult, for example if you have accepted another job elsewhere.
Feeling that you have no option but to resign from your employment because your employer is not respecting your contract of employment is a very stressful and upsetting time. While taking legal action may feel like an additional stress, financial compensation may help you while you are getting yourself back on your feet, paying bills. It’s important to choose a firm of solicitors that understands what you are going through and will take the time to give your case the personal attention it deserves.
Truth Legal specialises in advising people in these difficult situations. If we can help resolve a situation so that you don’t have to leave your employment, we will do so. If you have no option to resign we can explain what your options are and how you may be able to claim compensation from your employer. We may even be able to negotiate a Settlement Agreement which means you will receive compensation without the stress of an employment tribunal hearing (not to mention the time and costs that this will involve).
If you resign and can show that you did so because of your employer’s breach of contract and you have two years’ service, then your compensation will be made up of:
a basic award calculated in a similar way to the statutory redundancy payment formula ; and
a compensatory award which is a calculation of the money you have lost as a result of the constructive dismissal. This is capped at a maximum of 1 year’s salary, or £80,541 (the current statutory cap – as at October 2017), whichever is the lower. The exception to this is where the breach of contract is related to another issue such as unlawful discrimination, whistleblowing, health and safety breaches, or if the constructive dismissal arises out of you trying to assert a statutory right.
If you started a new job during your notice period, you must take account of this in a constructive dismissal claim.
In addition, you may be able to claim for your notice period and your loss of statutory rights, amongst other heads of claims. For example Schedules of Loss, take a look at our free, downloadable documents available in our Legal Library .
You must normally have worked for your employer for two years or more as this will allow you to claim constructive unfair dismissal. However, if your employer breaches your contract of employment before you have two years’ service, you may still be able to bring a claim of wrongful dismissal. Compensation for wrongful dismissal will allow you to recover your financial losses, such as pay and commission you would have received during a notice period, plus any other financial benefits such as holiday pay.
Make sure you follow any internal grievance procedure before you resign
Whatever the problems you are facing at work, you should try and use the internal grievance procedure to resolve things before taking the step of resigning. However, this depends upon the circumstances of your situation.
Don’t leave it too long before you resign
If you stay in your job for too long after your employer has breached the contract, your employer will try and argue that the breach wasn’t that bad, or that even if it was that bad, you have ‘accepted’ it by staying in work.
Make it clear in your resignation letter that you are resigning because of the breach of contract by your employer
Include the details of what has happened and the efforts you have made to resolve the situation, including the grievance process. Make it very clear that this is why you are resigning. The letter of resignation is a very important document and it is advisable to seek employment law advice on the contents of the letter.
Don’t leave it too long to seek legal advice
Remember that you only have a limited period of time to bring a constructive dismissal claim in an Employment Tribunal – usually 3 months from the date you resigned. You would be able to bring a wrongful dismissal claim in a County Court and for this you would usually have six years in which to issue court proceedings.
Truth Legal is one of a small number of solicitors that is prepared to take on some employment claims on a no win, no fee basis. We can discuss this with you in more detail if you decide that we are the right firm of solicitors for you!
Finding out More Information
If you would like to discuss your situation in more detail – either because you are considering resigning, or because you have resigned and want to know more about a constructive dismissal claim, get in touch with us to speak to one of our employment law experts today.