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What Is Constructive Dismissal?

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Constructive dismissal - Jacqui Mann

What Is Constructive Dismissal?

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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!

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