Constructive Dismissal Solicitors

Constructive Dismissal Claim

Constructive dismissal arises in situations where an employer commits a repudiatory breach over the employee’s contract. This typically arises in situations where the employer treats the employee less favourably than other members of staff and as a result, breaches the implied duty of trust and confidence which exists between all employees and their employer. This allows employees to accept the breach by resigning and pursuing a claim for damages in the Employment Tribunal against their employer.

Constructive dismissal derives from the Employment Rights Act 1996. It is a type of unfair dismissal which is described as constructive because rather than the employer terminating the employment, it arises in situations where the employee resigns following a serious breach of contract by the employer. This breach of contract could include an explicit term, for example, related to salary or working hours or alternatively, an implied term such as the mutual obligation to maintain trust and confidence between both parties. In situations where an employee believes that he or she has been treated unfairly by their employer, it is commonplace for that individual to argue that a fundamental breach of contract has occurred which will allow them to resign and pursue a claim of constructive unfair dismissal in the Employment Tribunal.

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This is a process which includes a formal investigation and a formal meeting, which the individual is invited to attend while being accompanied at that meeting by a colleague of his or her choice, or a trade union representative. Following the meeting, a decision will be confirmed to the individual in writing and a right of appeal will be offered. It is often following the conclusion of a formal grievance process, that individuals will take the decision to resign and claim constructive unfair dismissal.

If an individual resigns then the next step is to commence the ACAS early conciliation process as a precursor to issuing a formal claim at the Employment Tribunal. An employee can issue an ACAS as an early conciliation process with a view to formally conciliating or alternatively, simply obtaining a certificate which allows the employee to proceed to the next stage which is a formal tribunal claim. A claim for constructive unfair dismissal as with any claim for under fair dismissal, needs to be issued within three months of the date of termination.

Proving constructive unfair dismissal is in some cases, challenging for individuals and statistically, only approximately 1 in eight claims which are issued at the Employment Tribunal prove to be successful. It is essential for a successful claim, for the employee to provide cogent evidence that the employer’s behaviour was so grave that the individual was left with no option and was compelled to resign as a result of the poor treatment.

Employers conversely can argue that there was no fundamental breach of contract because their actions were not serious enough or that the individual failed to properly accept the fundamental breach of contract by resigning quickly enough after the act or omission.

A claim for constructive unfair dismissal can give rise to damages which amount to both a basic award and a compensatory award. A basic award is calculated with reference to an individual’s length of service and is calculated on the same basis as statutory redundancy pay. A compensatory award is based on the individual’s actual loss of salary suffered following the termination of employment. This is subject to statutory maximums which change on a yearly basis and an absolute maximum of 12 months’ salary for the individual concerned. For further information in relation to damages which can be obtained for successful unfair dismissal claims please follow this link.

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