Employees are sometimes forced to leave their job due to their employer’s conduct. This is known as constructive dismissal. Employment law expert Michael Shroot explores constructive dismissal and how to bring about a claim.
What’s constructive dismissal?
Constructive dismissal is the term used when an employee resigns in response to their employer breaching an important term of their employment contract.
This may be where the employer fundamentally changes an employee’s duties without being contractually entitled to do so, or where the relationship between the employee and employer has irrevocably broken down.
The elements of a successful claim
Where an employer has breached an important term of the employment contract, an employee is entitled to treat him or herself as having been dismissed. In these cases, the employer’s conduct is often referred to as a repudiatory breach.
For a constructive dismissal claim to succeed, the employee needs to show that:
- Their employer was in repudiatory breach of the employment contract;
- They resigned in response to that breach; and
- They did not delay too long before resigning in response to their employer’s breach.
If the employee continues working for any length of time without leaving they are likely to lose their right to treat the contract as breached and will be regarded as having chosen to affirm the contract.
When should I resign?
If you wish to pursue a claim for constructive dismissal, it’s important that you resign promptly in response to your employer’s breach. If you’re uncertain about resigning, then you may want to raise a grievance first.
The law doesn’t require you to raise a grievance but generally speaking, you should do so before bringing a claim for constructive dismissal. A failure to raise a grievance may mean that any compensation you’re entitled to could be reduced by up to 25 per cent.
What compensation will I be entitled to?
If you can establish that you were constructively dismissed, you may receive compensation for breach of contract and unfair dismissal.
Compensation for breach of contact will usually cover your notice period, while compensation for unfair dismissal is usually only available to employees who have worked for their employer for at least two years.
It’s split into a basic and compensatory award. The basic award is calculated on the basis of your age, salary and length of service, and the compensatory award considers your loss of earnings from the date of termination.
Time limits to bring your claim
As with all employment tribunal claims, there are strict time limits for bringing a claim. Claims must generally be commenced within three months of the date of dismissal and there are only very limited circumstances in which the tribunal will accept a claim for constructive dismissal that is submitted late.
For advice on constructive dismissal or any other employment law matter, call Michael Shroot on 0161 761 8087 or email him at michael.shroot@whnsolicitors.co.uk
