Constructive Dismissal

At GN Law, we recognise the gravity of making the decision to resign from your job, particularly when faced with unbearable circumstances. Constructive dismissal arises when an employer’s conduct becomes so intolerable that you are left with no alternative but to resign. Such a resignation is considered a form of unfair dismissal.

When Does Constructive Dismissal Typically Occur?

In most instances of constructive dismissal, it results from a severe breach of contract by the employer, often referred to as a ‘fundamental breach.’ This breach provides the employee with a valid reason to resign in response to the employer’s actions. Subsequently, the employee may claim constructive unfair dismissal.

Examples of situations that may constitute constructive dismissal include reducing your pay or withholding payment altogether, altering your work conditions without consultation, unjustified demotions, unfounded allegations of poor performance, unreasonable changes to your role, forcing you to work in violation of health and safety laws, or baseless accusations of misconduct.

A woman looks distraught and holds her head in her hand as she reads an unjustified demotion notice.

When Is Constructive Dismissal Automatically Unfair?

Constructive dismissal can be automatically unfair in cases related to various impermissible reasons, including:

  • Dismissal for asserting statutory rights at work, such as minimum wage claims.

  • Dismissal due to part-time or fixed-term employment status.

  • Action taken concerning health and safety issues.

  • Dismissal related to pregnancy or maternity.

  • Exercise of paternity leave rights.

  • Reporting employer wrongdoing, commonly known as whistleblowing.

Who Can File A Claim For Constructive Unfair Dismissal?

To pursue a claim for constructive unfair dismissal, you must have held employee status. It’s worth noting that even if your contract or employer classified you as self-employed, you may still qualify as an employee. Conversely, if you lacked guaranteed regular work, you might not meet the employee criteria. Typically, you need two years of service unless you resigned due to circumstances that would classify your dismissal as ‘automatically unfair.’

To succeed in a constructive dismissal claim, you must resign promptly in response to the breach in question. Delaying resignation for weeks after a repudiatory breach can be problematic and may lead to the tribunal deeming that you affirmed the contract. While there is no fixed deadline, each case hinges on its specific circumstances. Factors like an employee being on sick leave for work-related stress may warrant some leeway if there’s a slight delay in resignation. However, waiting until your sick pay runs out or until you secure a new job, while understandable, can weaken your constructive dismissal claim. Seeking advice before resigning is advisable.

Determining whether to raise a grievance can be challenging. In some cases, an employment tribunal may decide that you should have attempted to address the issue by raising it with your employer before resigning. If it was reasonable to raise a grievance but you chose not to, the tribunal can reduce any awarded damages by up to 25%. However, we understand that some situations may be so intolerable that resignation seems the only option.

It is advantageous to clearly state the reasons for your resignation. Positive comments in your resignation letter won’t strengthen your case. You must demonstrate that your relationship with the employer has irreparably broken down, so expressions of gratitude or statements about missing colleagues may undermine your position.

Act swiftly when considering a claim for constructive unfair dismissal, as the time limit is short. You have only three months less one day from the date your employment terminates to initiate a claim. Therefore, contacting us as soon as possible is crucial. The initial step is to contact ACAS and commence the early conciliation process.

How GN Law Can Assist You

We offer comprehensive support for ACAS early conciliation, collaborating with conciliators to clarify your claims and address issues with your employer. Additionally, we can aid in negotiating a settlement. If your employer fails to provide fair compensation during this early stage, we can guide you through the process of pursuing a claim in the employment tribunal.

For expert legal guidance and support in Huddersfield for constructive dismissal cases, contact GN Law today. We are dedicated to safeguarding your rights and assisting you in attaining a just resolution. Do not delay; get in touch with us at your earliest convenience.

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