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Monday 13 March 2017

Constructive dismissal – what you need to know

By Iain Birrell

If work is becoming intolerable, it’s important to understand the risks and pitfalls before resigning and making a claim for constructive dismissal. 

Man with head in hands

The government describes constructive dismissal as “when you’re forced to leave your job against your will because of your employer’s conduct”. However, a better description would be where you choose to leave because of their conduct – it’s the decision to resign which separates constructive dismissal from other types of unfair dismissal.

In an employment relationship, both sides have contractual obligations to each other. For example, an employer must ensure safe working conditions, payment for work done and a working environment free from discrimination. An employee must take reasonable care of their own health and safety and not put others in danger. Not all obligations are equal – some are quite minor but others are so fundamental they are the foundations on which the contract is built.

It is only when an employer is in breach of a fundamental obligation that a constructive dismissal claim can arise from a one-off event. Breaches of an employee’s rights in relation to pay, health and safety or discrimination are most likely to lead to a constructive dismissal claim. But the law is not clear cut: there are no set guidelines about what constitutes constructive dismissal, so there is always a risk with such claims. An employee thinking of resigning should see it as primarily a personal and economic decision, rather than a legal one. Thompsons never advise anyone to resign purely because they think they have a constructive dismissal claim.

The defining feature of constructive dismissal is that the employee must have resigned. This seems obvious but is regularly overlooked. A good rule of thumb is that if you need someone else to convince you to resign, then it’s probably not a constructive dismissal situation. 

Any delay between the event which prompted you to resign and handing in your resignation can cause problems. Some delays, such taking time to get advice or waiting for the outcome of a grievance process, can be fine, but other delays can weaken a constructive dismissal claim – sometimes fatally. You are effectively saying “my employer behaved so badly, I simply cannot work here anymore” and this claim is undermined if you continue to work there without complaint.

It’s particularly risky to claim constructive dismissal in a ‘final straw’ situation, where the employer’s last act was not in itself fundamental enough to end the contract, but was the last in a series of unreasonable acts. You will need an employment judge to agree that these ‘straws’, which can be quite minor individually, are really important when considered as a whole – and that makes the case trickier.

One such case involved a council housing department worker who lodged a number of unsuccessful discrimination cases against his employer. During the hearings, he did not apply for special unpaid leave or annual leave, so was not paid for the time he took off. He then resigned, claiming that the refusal to pay him was the ‘final straw’, and he had been constructively dismissed. The Court of Appeal found that none of the actions against him were serious enough to warrant constructive dismissal and his claim was rejected. 

Any incident which you believe has forced you to resign will be taken in context by the Employment Tribunal. For example, foul language might be considered more acceptable in a factory than in an office, and criticism more acceptable in private than if made in public. Environment, location and tone are all important to context.

Constructive dismissal claims are harder to win than ordinary unfair dismissal claims. You have to do more of the running and your evidence will be put under a microscope. Thompsons advises anyone who thinks they might end up making a constructive dismissal claim to keep a detailed diary, especially for potential ‘last straw’ cases. 

Colleagues often refuse to act as tribunal witnesses, so contemporaneous notes are the next best thing, and are far more persuasive than a stream of half-remembered facts. Records also make it harder for employers to claim that your resignation was actually prompted by a new job offer.

If you think you are in a constructive dismissal situation, make sure you contact your union for advice immediately.

Iain Birrell is an employment law solicitor with Thompsons Solicitors. Legal Eye does not offer legal advice on individual cases. MiP members in need of personal advice should immediately contact their MiP rep or national officer.

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