Constructive dismissal - Jacqui Mann

What Is Constructive Dismissal?


Recently we have had an employer contact us for HR support to find out if an employee can make a claim for constructive dismissal.

So what is constructive dismissal?

Different from ‘wrongful dismissal’, ‘constructive dismissal’ is where an employee terminates their employment in response to their employer’s treatment of them. Although there has been no actual dismissal, the treatment is sufficiently bad that the employee is entitled to regard themselves as having been dismissed.

What does the employee have to prove?

To prove a constructive unfair dismissal, an employee must show that:

  • the employer has breached the employment contract and
  • this is a significant or fundamental breach of contract and
  • they terminated their employment in response to that breach and did not delay resigning

An example of constructive dismissal

An example of a case where the employment tribunal found that an employee’s resignation was not in response to the employer’s breach of contract is Thomas v The Arts Council of Wales (unreported, ET/1604301/08 17 June 2009, ET).

The employee requested to work part-time after her maternity leave. The employer refused, saying they needed full time hours. The problem the employer had was that they didn’t deal with the flexible working request correctly. The employee claimed the way they dealt with it was a fundamental breach of contract, breaking the implied term of trust and confidence. The tribunal was not satisfied that this breach was the reason for her resignation. The employee failed to show that she had been constructively unfairly dismissed. (However, the employee won her claim of unlawful indirect sex discrimination).

Also Read: How to Manage Employees’ Probationary Period

How easy is it to show constructive dismissal?

A constructive dismissal is far more difficult to prove than an employee often thinks. First they must prove a fundamental (rather than minor) breach of contract by the employer.

The employee must also show that their decision to terminate their employment was in response to the breach. An employment tribunal will need to satisfy itself that the employee did not delay too long in resigning. A tribunal will usually expect an employee to have tried to resolve the complaint through the grievance procedure before resigning.Employment Contract

How to avoid constructive dismissal claims

Constructive dismissal claims are usually based on a grievance that the employee has. It’s therefore important to invite the employee to a grievance meeting, giving them the right to be accompanied.  Listen to what they have to say and then respond to the grievance in writing.

Getting to the bottom of the grievance is the key to reassuring the employee or, if they are determined to leave, weakening any potential tribunal claim they may bring.

So the moral of this story is always follow your procedures and whatever you do don’t ignore a grievance!



Can’t Do Or Won’t Do


Do you have a member of staff who gets things wrong now and again?

Are you unsure if they need more training or if they just can’t be bothered?

If that’s the case then using a capability procedure with the employee will identify if it’s a can’t do or won’t do situation.

What is the difference between Capability and Disciplinary?

The main difference:

  • Disciplinary deals with conduct – won’t do
  • Capability deals with the employee’s ability to carry out the role – can’t do.

If an employee is on long term sick you would deal with any potential dismissal under capability and not disciplinary.

Investigation and Capability Proceedings

  • Managers should consider whether there are any exceptional circumstances e.g. it’s a new job, insufficient training has been given, or personal problems before starting the capability procedure.
  • Once the decision is made to deal with the issue under the capability procedure, instead of disciplinary action, a meeting should be held. The meeting should be conducted by the employee’s line manager, whenever possible.

The Capability Meeting

  • The employee must be made aware of the issue, and that the meeting is being held under this procedure.
  • Advise the employee of the time, date and place and that they have the right to be accompanied by a colleague or trade union representative.
  • The manager conducting the meeting will explain to the employee the purpose of the meeting. The employee will be given a chance to respond. The manager will review all available evidence, including any mitigating circumstances, before deciding what action is likely
  • If the manager conducting the meeting is satisfied that the employee’s work is to a satisfactory standard and that no further action will be taken, the employee should be informed in writing. Or if the work is not to a satisfactory standard action will be taken under one of the capability stages.

Action under one of the capability stages normally follows one or more of the following:

  • Timescale for improvement.
  • Provide suitable training, guidance and feedback.
  • Set task(s) for the employee to complete.
  • Following the expiry of any period during which improvement is required the employee will be informed that :

Either:  Performance has shown satisfactory improvement during this period.

Or:         Performance has not shown satisfactory improvement and further action will be taken.

  • If the manager conducting the meeting is satisfied that the employee’s work is showing an improvement or is at a satisfactory standard then either no further action will be taken or extra time may be provided to achieve the expected standard.
  • The manager conducting the meeting should keep a full written record of the meeting and the decision. The employee must be provided with written confirmation of the decision as soon as possible.
  • An employee receiving a final written warning should be warned that failure to achieve the desired improvement in performance by the end of the stated time period will result in dismissal.
  • If the employee is to be dismissed the letter must state the reason for dismissal.

I always recommend having a separate capability policy. Don’t have one?  We can provide one for you.  Contact or call 01980 622167.



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