Typically, it is the employer that "dismisses" an employee. This is called an "express dismissal". But there may be circumstances where an employee resigns but claims that they have effectively been “dismissed” as a result of the employer’s bad conduct. A resignation in such circumstances may amount to what is known as a “constructive dismissal”.
For any employee thinking of resigning and claiming constructive dismissal, there is a lot to consider. "Constructive dismissal" is not as easy a claim to win as employees sometimes think, even when their employer may not have treated them well.
But, for employees thinking along those lines, here are a few practical observations which may help in "constructive dismissal" situations:
“Mere unreasonableness" by your employer may not be enough to allow you to win your claim for constructive dismissal. Employer conduct has to be so bad as to amount to a "fundamental breach of contract". This is a higher bar than many employees realise and, legally, the “burden of proving” the constructive dismissal is on you as the employee, not on the employer.
In the majority of constructive dismissal cases, the employee relies on an alleged breach by the employer of "the implied term of mutual trust and confidence". In such cases, the employee has to show that the employer “…has, without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between them”. This is why there is such a high legal bar for employees to overcome.
If you want to bring a claim for constructive dismissal, you can't usually wait too long after the employer’s bad behaviour to resign. If you do wait too long, you may be found to have "waived" the breach, and your constructive dismissal claim will fail.
There have been cases where the behaviour of the employer happened some time ago, but the employee is still able to rely on a principle of constructive dismissal law known as "the last straw doctrine”. In essence, this is where the employee puts up with a series of actions by the employer but then, much later, resigns in response to further employer bad behaviour which they see as the “last straw”. The last straw must contribute something to the breach, and be more than trivial. It cannot be entirely innocuous but, if it isn't, this may be a way for you to be able to rely in your constructive dismissal claim on much earlier acts by your employer, even if you didn't resign in response to them at the time.
If an employee has a complaint about something that their employer did, it is usual to submit a grievance to the employer. There is caselaw to the effect that a failure to address a grievance promptly and/or adequately can itself be a breach of an implied term of the employment contract, justifying the employee resigning and claiming constructive dismissal. This is useful to know if your employer is dragging its feet when dealing with your grievance.
There is a tension in constructive dismissal law between the requirement of the employee to resign promptly, and the modern practice of submitting grievances (which may take weeks, or sometimes even months, to investigate). To maximise the prospect of not being found to have waited too long before resigning, thereby "waiving the employer's breach", when submitting any grievance letter, be sure to state in it words to the effect that "…all of my contractual rights are reserved and nothing in this letter, nor my decision not to resign immediately at this stage, constitutes a waiver of my contractual rights pending the outcome of this grievance process…”
When claiming "unfair constructive dismissal" under the Employment Rights Act 1996, claims can be brought if the employee resigns and works their notice period. This is useful for employees who haven't got another job to go to, and feel they need the money they would earn during their notice period. For other types of constructive dismissal claims however (e.g. "wrongful constructive dismissal") resigning and working your notice period could mean that the tribunal finds that you have "waived the breach", in which case the claim would fail. So be careful about working your notice period if you intend to bring claims which are not solely "unfair constructive dismissal" under the Employment Rights Act 1996.
Be wary of missing employment tribunal time limits in constructive dismissal situations. For "unfair constructive dismissal" claims under the Employment Rights Act 1996, the tribunal time limit starts to run from the "effective date of termination", which can be the end of the notice period, if notice was worked. If however the same facts are relied on to bring a claim for constructive dismissal under the Equality Act 2010 (usually brought in the same tribunal proceedings) time starts to run from the date of resignation. Being aware of this could help you avoid presenting your “discrimination constructive dismissal” claim out of time.
Together, we may be able to identify other options which may allow you to achieve your objectives, without you necessarily having to take the big step of immediately resigning. Constructive dismissal claims are not as easy for employees to win at tribunal as is sometimes thought. But if it is the right step for you, we can help.
Comments