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Constructive Dismissal

Constructive Dismissal

In what circumstances can an employee resign without notice and claim for constructive unfair dismissal?

Constructive unfair dismissal is the legal term for a situation where an employee resigns in circumstances where that employee claims that he/she has been forced to resign. In order to pursue a claim for constructive dismissal the employee must have the requisite level of employment length, currently 2 years, and the breach of contract must be serious enough, in law, to constitute constructive dismissal. In simple terms, the employer must have fundamentally breached the employment relationship.

What would be a “fundamental” breach of my contract?

The employer must have acted in such a manner to have destroyed the basis of the employment relationship. It is not sufficient that your employer has acted “unreasonably.” In some instances it can be relatively clear as to whether a fundamental breach has occurred – as an example, it is clearly fundamental to the employment relationship that the employer pays the employee. If the employer does not, that would be a fundamental breach. More commonly, situations arose which are not as clear cut but where an employee feels they are being treated badly, and these types of issues can be more difficult, to determine whether the employee, if they resign, would have a good claim for constructive dismissal.

Implied employment contract terms and constructive dismissal

Contracts of employment include both express (terms specifically agreed) and implied terms (implied by law even if not included or specifically agreed). Many constructive dismissal claims arise due to implied terms of the contract which are usually:

  • a duty of mutual trust and confidence
  • the employers implied duty not to treat an employee in an arbitrary, capricious or inequitable manner
  • the employer's duty to take reasonable care for employee’s health and safety

Delay in acting may constitute waiving the employer's breach

We commonly come across situations where employee clients are in a major dilemma. Something has happened or is happening at work and the employee is very unhappy about it. As against that, employees are aware that resigning suddenly, especially in an uncertain employment market, is risky. That dilemma can lead to the employee waiting and hoping that things will improve, especially in situations such as bullying or a feeling that the employer is trying to “mange you out”. The difficulty is that, in legal terms, if an employee delays in complaining and possibly then resigning, an Employment Tribunal may find that even if there has been the requisite fundamental breach of contract, the employee has waived or accepted the breach of contract by not acting on it. An employee does not have to act immediately, but time is limited, so employees in this difficult predicament ought to get good advice early and to certainly be aware of the issue.

Contact our employment law experts today

Are you are an employee who has felt pressure to resign? Do you feel that you may be entitled to claim for constructive dismissal?  Please call our specialist employment lawyers on 03456 381381. Alternatively,please  email your details to employment@ibblaw.co.uk

Marc Jones

Marc Jones

Partner marc.jones@ibblaw.co.uk 01895 201719