Constructive dismissal: understanding the pitfalls and exploring your options
Competing priorities, lack of support and stress at work leave some managers feeling they have no option but to resign. But in what circumstances could resignation amount to constructive dismissal? Jo Seery explains the law on constructive dismissal, the challenges it presents and the other options available.
Constructive dismissal is when an employee considers they have no option but to resign because of a serious breach of contract by the employer. For a successful claim, an employee must prove that:
- there has been a breach of contract by the employer
- the breach is sufficiently important to justify resignation, or is the last in a series of acts which justify resignation
- the breach is the reason for leaving, not some other, unconnected reason
- there is no delay between the employers’ breach and the resignation
What is a breach of contract?
A breach of contract could include a fundamental change to terms and conditions of employment, such as non-payment of wages, failing to provide a safe working environment (for example, by failing to stop bullying) and suspending an employee without pay where there was no contractual right to. But most cases are brought on the grounds that the employer has breached the implied term of trust and confidence.
What is a ‘breach of trust and confidence’?
The law implies a term into all employment contracts that employers will not, without reasonable or proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties. Examples from case law include:
- putting pressure on an employee suffering from depression to return from sick leave
- issuing an employee with an ‘improvement notice’ about their conduct, without first hearing their side of the story
- mentioning in a reference complaints about an employee which they were unaware of
Why is so hard to win a constructive dismissal case
Unlike an unfair dismissal claim, where the burden is on the employer to establish a fair reason for dismissal, with constructive dismissal the burden of proof is on the employee.
To win a claim, you need to prove that your employer committed a serious breach of your contract. This could be an express, written term (non-payment of wages, for example) or an implied term, such as the duty to provide a safe working environment. The challenge lies in showing that the breach was sufficiently serious to justify resignation – unreasonable behaviour by the employer, for example, will rarely be considered serious enough.
Proving that your resignation was a direct result of the breach is another obstacle. In one case, an employee who resigned because they didn’t agree with how the business was run was held not to have been constructively dismissed. Neither was an employee who resigned over a dispute about pay. In both cases, the court held there was no breach of contract. Employers often counter constructive dismissal claims by arguing that the employee resigned for reasons unrelated to a contract breach, or that they were unaware of the employee’s concerns.
The time limit for bringing a employment tribunal claim is three months less one day from the end of employment, and employees must also notify ACAS within three months that they have started the early conciliation process. Tribunals can only award financial compensation and most have a backlog of cases which could lead to significant delays.
Alternative actions
If you are considering resigning and claiming constructive dismissal, your MiP may be able to help you find a resolution with a better outcome. These include:
- Lodging a grievance gives you the opportunity to resolve the issue and stay in your job with agreed changes, such as a reduction in workload or more support.
- Mediation and negotiation can also help de-escalate conflict, especially if the root of the problem is miscommunication or a breakdown in relationships. Agreed action may include a change of line manager, more training or different responsibilities.
- A settlement agreement negotiated with your employer would enable you to leave under mutually agreed terms, including compensation.
If you’re facing an intolerable situation at work, it’s essential to seek advice from your MiP rep and explore all possible avenues before resigning. MiP is here to support you every step of the way.
- Jo Seery is a senior employment rights solicitor at Thompsons Solicitors, MiP’s legal advisers. For more information visit the Thompsons website. Legal Eye does not offer legal advice on individual cases. Members needing personal advice should contact MiP by emailing MemberAdvice@miphealth.org.uk.
Related Stories
-
Know your new legal rights at work
The government’s employment bill has been styled as the biggest upgrade to workers’ rights in a generation. Jo Seery explains what the new rights will mean in practice for MiP members.
-
Employment transfers: a brief guide to the law
With the NHS transfer window wide open again, Jo Seery from Thompsons Solicitors explains your rights if you have to move to a new employer.
-
It’s your future: our guide to consultations in your workplace
As yet another round of reorganisation gets underway in the NHS in England, our new guide to workplace consultations will help you to help yourself, support your colleagues and protect the services you manage.
Latest News
-
Government proposal for sub-inflation pay rise “not good enough”, says MiP
Pay rises for most NHS staff should be restricted to an “affordable” 2.5% next year to deliver improvements to NHS services and avoid “difficult” trade-offs, the UK government has said.
-
Unions refuse to back “grossly unfair” voluntary exit scheme for ICB and NHS England staff
NHS trade unions, including MiP, have refused to endorse NHS England’s national voluntary redundancy (VR) scheme, describing some aspects of the scheme as “grossly unfair” and warning of “potentially serious” tax implications.
-
Urgent action needed retain and recruit senior leaders, says MiP
NHS leaders are experiencing more work-related stress and lower morale, with the government’s sweeping reforms of the NHS in England a major factor, according to a new MiP survey.