Constructive Dismissal

Constructive dismissal occurs where an employee (who meets the qualifying criteria) resigns in response to a breach of contract by their employer. The breach must be sufficiently serious to warrant the employee “accepting” the breach of contract and bringing the contract to an end.

Resigning from employment is generally considered to be a last resort when dealing with a workplace issue. However, if it is something you are considering, it is important to be aware of a number of factors which are generally required for a claim to be successful, namely:

• The employer’s conduct must be sufficiently serious to constitute a “repudiatory breach” of an express or implied term. The breach can consist of a one-off act or a continuing course of conduct;
• That resignation must be done “without undue delay” to avoid being held to have affirmed the contract;
• The resignation should generally be without notice to avoid inadvertently affirming the contract; and
• The resignation should be in response to the breach. The vaguer the reason for resignation, the harder it is to successfully show this.

Examples of situations which could (although not always, and context is extremely important) constitute repudiatory breaches of an employment contract include (list not exhaustive):

• The employer has made unilateral changes to working hours or working conditions
• The employer has unilaterally removed contractual company benefits
• The employer has permitted other employees to harass or bully an employee in the workplace
• The employer has failed to pay an employee
• The employer has failed to ensure that an employee has a safe working environment
• The employer has failed to deal with a grievance fairly

What is the time limit for making a ‘constructive’ unfair dismissal claim?

Other than in exceptional circumstances, to make a constructive dismissal claim you will need to have started Early Conciliation through ACAS or issued your claim within 3 months of the date of the breach (or date of the last breach if you are relying on a series of breaches). If you resign without notice this will be the day you resigned, and if you give notice, it will be the final day of that notice period.

If you are facing a situation at work which you consider might amount to a repudiatory breach of contract by your employer, making the decision to resign can be daunting. There is no guarantee you will be successful in a constructive dismissal claim, and by resigning, you would be leaving your paid employment. Getting in touch with our employment solicitors will allow us to:

• Advise you in relation to your workplace issue (it could be that we can help you to resolve your problem without needing to pursue a claim);
• Advise you on your prospects of success of any potential constructive dismissal claim; and
• If necessary, advise and provide representation in relation to any potential case you may have.

Case examples

We have acted for many individuals in relation to their constructive dismissal claims including some recent examples below:

Example 1

We acted for an employee who, had increasingly started to receive unsolicited communication from her male line manager which made her feel uncomfortable. He had started text messaging her in the evenings and weekends and, on a work trip, had started to share very personal details about his life.

This put her in a difficult position, given that he was her manager and although she tried to shut things down in a friendly and tactful way, the inappropriate contact continued.

She raised a formal grievance with her employer which was dealt with poorly and which effectively dismissed her concerns. It became apparent that there was a pre-determined outcome by the employer when investigating the grievance in favour of the manager.

Our client resigned and claimed constructive dismissal. We were able to act as representatives for her throughout proceedings, negotiating a settlement on her behalf with which she was extremely pleased, before the matter progressed to trial.

Example 2

We acted for a senior manager within a business who was entitled to a contractual bonus each year from his employer, calculated with reference to financial performance. He was not paid the bonus in a particular year, despite our client meeting the financial targets required to trigger a bonus payment.

Our client resigned in response to his employer’s actions. We made a formal disclosure request to establish the level of bonus our client was entitled to.

After a period of negotiation, we were able to secure a generous pre-issue settlement in respect of (constructive) unfair dismissal, unpaid bonus and legal fees contribution.

Example 3

We acted for an employee who was suspended on possible disciplinary charges. She was not to blame: the offences did not come within her remit; she was being used as a scapegoat. She raised a grievance which fell on deaf ears. Mutual trust and confidence had been fundamentally breached so she resigned. She received a generous pre-issue settlement and agreed reference.

While it may not always be possible to settle matters before tribunal, we recognise that it is often in our client’s best interests if a favourable settlement can be reached early in proceedings, so we will aim to work with you to achieve this wherever possible.

Get in touch with our employment solicitors

We appreciate that being in this position can be worrying and we pride ourselves on offering empathetic support, taking a practical approach, while ensuring that clients understand their position and options at every stage. Our experts have worked with clients across many different sectors and appreciate that every situation is unique, which is why we take the time to get to know your case, allowing us to offer you bespoke support.

We also act for employers who find themselves accused of constructive dismissal by a disgruntled employee who has resigned. With our help, the claim can either be defended all the way to final hearing or (if appropriate) we can engage in settlement negotiations.

When you work with us, you’ll benefit from the expert assistance of an experienced and dedicated team. We are proud to be acknowledged by the Law Society Lexcel accreditation, which recognises our commitment to providing top-quality practice management and client care, having also received the Customer Service Excellence award.

To access legal support and discuss your case today contact our employment solicitors in Alconbury, Birmingham, Nottingham, Peterborough, or Spalding.