Constructive dismissal occurs where an employer commits a serious breach of its contract with an employee. The breach, known as a ‘repudiatory breach’, must be sufficiently serious as to entitle the employee to resign without notice.
The constructive dismissal process cannot be used simply because the employee alleges mistreatment, or the relationship between the employer and employee has broken down – the terms of the employment contract must have been breached. Instead, constructive dismissal might apply to a breach of contract related to any of the following:
- REDUCTION IN SALARY
- WITHDRAWAL OF JOB-RELATED PERKS
- REDUCTION IN WORKING HOURS
- CHANGES IN THE INDIVIDUAL’S EMPLOYMENT DUTIES
- CHANGES IN WORK LOCATION
- IMPOSITION OF AN EXCESSIVE WORKLOAD
- MAKING NO ATTEMPT TO HANDLE A GRIEVANCE CLAIM MADE BY THE EMPLOYEE
- FAILING TO PREVENT BULLYING AND HARASSMENT BY COLLEAGUES
- HANDLING A DISCIPLINARY PROCESS INEFFECTIVELY
- CREATING AN IMPOSSIBLE WORKING ENVIRONMENT, SUCH AS ONE THAT IS PATENTLY UNSAFE
As mentioned above, the employment contract must have been breached. So if your contract allows the employer to reduce your salary or hours, or to re-locate your role, then you don’t have a case for constructive dismissal.
Constructive dismissal claims can also be brought regarding changes your employer intends to make in the future. For example, if you are told that your role will be re-located in the near future, and the change meets the criteria for constructive dismissal, you can make a claim for what is known as an ‘anticipatory breach’.
In order to claim constructive dismissal, you must resign, whether this is with or without notice. You must have been with the employer in question for at least two years. You can’t claim constructive dismissal whilst remaining in your job. This inevitably means that making such a claim is a high-risk process, as if you lose your case you could find yourself out of work, without any financial compensation.
Claiming constructive dismissal also requires formal proceedings of some sort. If you make a claim via an employment tribunal, this must occur within three months, less one day, of the date the employment contract was terminated. Damages for claims made via tribunals are restricted to £25,000. Claims can also be made via the county court anytime up until six years of the termination of the contract, and here larger damages awards can be made.
Anyone considering making a constructive dismissal campaign is recommended to seek expert advice, if not from a solicitor then from an advice service such as Citizens Advice.