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Constructive dismissal is perhaps one of the most misunderstood terms in all of employment law. A constructive dismissal is where an employee resigns and is entitled to resign without notice because of their employer’s conduct.
It is not sufficient for any employee to simply allege that they have been mistreated. The employee must clearly identify how and when the employer has breached a serious or fundamental terms going to the root of the employment contract. This is known as a repudiatory breach.
It may be relatively straightforward for the employee to prove that the employer has breached a fundamental term of their contract when it relates to cuts in pay or hours. Although it’s much more difficult to prove constructive dismissal claims based on breaches of trust and confidence. Employees must take care before deciding to resign and claim constructive dismissal on this basis. The courts have found the following breaches of contract to be sufficiently serious to entitle the employee to resign and claim constructive dismissal:
If an employee resigns with notice when intending to claim constructive dismissal it may undermine their argument that the working conditions or behaviour of the employer is intolerable however the courts have also decided that it is not strictly necessary for the employee to resign giving the reasons for the resignation and stating that they consider themselves to be constructively dismissed. That said it is preferable that the employee does state clearly the reason for the resignation and that they consider themselves to be constructively dismissed. If they fail to do this it may add strength to the employer’s argument that the real reason for their resignation was not a constructive dismissal.
Employees may resign in response to a breach that the employer has already carried out (known as an actual breach) or in response to a fundamental breach that the employer intends to do in the future (an anticipatory breach). For example, the employer may tell the employee that he will need to move to a new location the following month.
It is vital that the employee clearly demonstrates their opposition to the employer’s conduct or actions and that they should not wait too long before resigning. If they continue to work the employer may argue that the employee has not accepted the breach and has affirmed the contract. In other words they have overlooked the employer’s alleged breach and have decided to carry on working under the employment contract.
Claims must be submitted to the employment tribunal within three months of the employment contract being terminated. This time limit may be extended by application in exceptional circumstances but you must act promptly.
If you feel you have been forced to resign from your job as a result of unfair treatment you could have a claim for constructive dismissal, for advice please call us on 028 3026 7134 or email law@lukecurran.co.uk. At Luke Curran & Co. Solicitors Newry, we can advise you on all aspects of a possible claim for constructive dismissal.
