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Tuesday 30 October 2018

Constructive dismissal: think twice before you walk

By Stephen Smith

A difficult boss and unreasonable demands from your employer don’t necessarily add up to constructive dismissal. In law, the standard of proof is much higher.

Woman leaving workplace with her belongings in a cardboard box

MIP members still ask me, almost every week, if they are being constructively dismissed. Constructive dismissal refers to a situation where the employer has committed a serious breach of contract, which entitles an employee to resign but to have their resignation treated as dismissal. Essentially, the employer has “forced” the employee to quit.

Constructive dismissal is notoriously hard to prove. In considering the general question, ACAS guidance is a good starting point. It states: “An employer acting unfairly or unreasonably would generally not be seen to be constructive dismissal. Only in the most serious of cases could the actions of the employer amount to constructive dismissal.”

In other words, bad employers still have significant scope within which to act either unfairly or unreasonably under existing UK employment law.

ACAS offers examples of some situations that could (note, could) imply that you’ve being constructively dismissed, including:

  • Being bullied or discriminated against by either the employer or your colleagues
  • Changing your hours or place of work without agreement and without having the contractual right to do so
  • Raising a grievance which the employer refuses to look into
  • Being given an excessive workload
  • Consistently being paid incorrectly

The first thing for MiP members to note is that any half-decent health or care service employer will have policies to address all the above – and an employment tribunal will usually expect you to have pursued them, or will ask very pointed questions about why you haven’t.

Secondly, all that these scenarios indicate is that you may have been constructively dismissed: much still depends on the individual circumstances of your cases and the seriousness of the breach by your employer.

Thirdly, to prove constructive dismissal, the law requires three key things to have happened:

  1. The employer must have fundamentally breached the employment contract
  2. The employee must have resigned in response to that breach (and not for any other reason)
  3. The employee must not have waived that breach by continuing to behave is if they are willing to treat the employment contract as ongoing, despite the breach (in other words, you can’t carry on working as normal and claim constructive dismissal later)

So, something greater than good old-fashioned unreasonable behaviour by an employer is needed. The employment relationship needs to be extremely disadvantageous for you – it’s not enough for it to feel “lop-sided” or demanding. Previous examples of behaviour and actions that employment tribunals have considered unacceptable and amounting to constructive dismissal include:

  • Unilaterally cutting pay or hours of work
  • Demotion
  • Using foul or abusive language
  • Public humiliation
  • Bullying and harassment
  • Failing to investigate a grievance properly or adequately
  • Refusing the right to be accompanied or represented (e.g. by a trade union rep or friend)

In cases where MIP has a legal opinion which supports us pursuing a constructive dismissal claim at an employment tribunal, the legal obstacles which we need to overcome to prove the claim are still very high indeed. The vast majority of such cases are lost, mainly because of the prohibitively high legal standard required by current law.

It’s also worth noting that an award for constructive dismissal is in lieu of any redundancy payment that may be due – it’s not a keycard for accessing your contractual redundancy entitlement.

The maximum basic award payment you can receive is £15,240 and there is the additional possibility of a compensatory award of “such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer”. (Hint: this is unlikely to be an amount that will allow you to move to Monaco as a tax exile.)

In summary, if you think you’re being constructively dismissed then think twice, and speak to your MiP rep or national officer as soon as possible. But don’t be surprised if we need to explore another avenue to resolve the problem.

Stephen Smith is MiP national officer for the South Central region. If you think you may be in a position to claim constructive dismissal, talk your MiP national officer before doing anything else.

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