Constructive Dismissal Solicitors
Due to the conduct of your employer, you may feel that you have no choice but to resign. Unless you have another job to go to, this could leave you in serious financial difficulties, as well being very unsettling. It can also leave you with problems finding new employment. If you believe your employer has acted in a way that makes it intolerable for you to continue and want to leave your employment, you should take legal advice from specialist employment solicitors.
Our employment law team includes some of the region’s top ranked employment lawyers with experience representing employees of all levels for many years in claims for constructive unfair dismissal. No matter your situation, if you believe you have been constructively dismissed, we can help you fight for your employment rights and get a fair outcome.
We always tailor our approach to your situation, helping you to get a fair outcome for your claim as quickly and easily as we can. Wherever possible we will seek to resolve your claim without the need for an employment tribunal, saving you time, money and stress.
In what circumstances can you resign and claim constructive dismissal?
Constructive dismissal is the legal term for a situation where you resign in circumstances where you have been forced to resign. It is not a dismissal by your employer. The reason for resigning must be due to a breach of contract by your employer (Western Excavating (ECC) Ltd v Sharp).
The following elements are needed to establish constructive dismissal:
- your employer must have committed a repudiatory breach of an express or implied term of your employment contract
- you must elect to accept the breach and treat the employment contract as at an end
- you must resign in response to the breach
- your resignation must be unequivocal
- you must not delay too long in accepting the breach, as it could be argued that you have waived the breach and affirmed the contract.
A repudiatory breach cannot be cured by your employer by attempting to undo what has been done. Unless you have waived the breach or affirmed the contract, you have an unfettered right to choose whether to treat the breach as terminal.
You may resign with or without notice but what matters is that you should be entitled to terminate the employment contract without notice. In practice, most employees who are claiming constructive dismissal do not work their notice period, but where they do, the constructive dismissal occurs on the date when the notice expires.
If you want to pursue a claim for constructive unfair dismissal you must normally have been employed for 2 years, although there are some exceptions (e.g. whistleblowing). To pursue a claim for constructive wrongful dismissal you do not need to have been employed for 2 years but any claim will in most cases be limited to your notice period.
What would be a repudiatory breach of your employment contract?
Your 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.
The breach of your employment contract may be actual or anticipatory (i.e. your employer demonstrates an intention not to be bound by the employment contract in the future). The breach may consist of a one-off act or a continuing course of conduct extending over a period, culminating in a last straw but must be sufficiently serious to justify you resigning.
Identifying what constitutes a repudiatory breach of your employment contract is often far from straightforward. In practice, you must:
- identify the alleged breach of contract
- establish the evidential basis of the claim, which are usually in dispute
- satisfy a court or a tribunal that the facts as proven are sufficient in law to amount to a repudiatory breach of contract, which is a question of fact and degree and it can be a difficult issue to assess.
Each case will turn on its own facts.
A breach of an express term will be relatively clear as to whether a repudiatory breach has occurred. For example, if you were not paid your wages which is a fundamental to the employment relationship and an express term of an employment contract would be a repudiatory breach.
A breach of an implied term will be a matter of evaluating the evidence in all the circumstances and may turn on matters of impression or the context in which the events take place. However, unless a breach of contract is significant and either goes to the root of the contract or shows that the employer no longer intended to be bound by one or more of the essential terms of the employment contract, it will normally fall short of being a repudiatory breach.
What would be a breach of an implied term of the employment contract?
Many constructive dismissal claims arise due to a breach of an implied term of the employment contract, which would be the duty:
- of mutual trust and confidence
- not to treat you in an arbitrary, capricious or inequitable manner
- not to treat you in a discriminatory manner
- to take reasonable care for your health and safety.
- failure to provide you with a reasonable opportunity to obtain redress in respect of a grievance
- an inept handling of disciplinary matters where you are suspended or presented with allegations about your conduct and any suspension or allegation is manifestly unreasonable, particularly in cases where the allegation is of the utmost seriousness
- an inept raising of work issues while you are on sick leave that are not serious or urgent
- subjecting you to an excessive workload causing damage to your health
- creating an intolerable working environment causing damage to your health.
Is a constructive dismissal always unfair?
There is no rule of law that a constructive dismissal will be an unfair dismissal. An employment tribunal must look at your employer’s conduct and decide whether it acted fairly. However, in most cases it will be difficult for your employer to bring itself within the range of reasonable responses in circumstances where it has fundamentally breached your employment contract.
What should you do?
We commonly come across situations where employees are in a major dilemma. Something has happened or is happening at work and they are very unhappy about it. However, they are aware that resigning suddenly, especially in an uncertain employment market, is risky. That dilemma can lead to employees waiting and hoping that things will improve. The difficulty is that if an employee delays in complaining and possibly then resigning, an employment tribunal may find that even if there has been the requisite repudiatory breach of contract, the employee has waived or accepted the breach of contract by not acting on it.
You do not have to act immediately, but time is limited, so you should in this difficult situation get good advice early.
IBB Solicitors’ employment law team can provide a clear, pragmatic assessment of your situation and advise you on whether you have grounds for claiming constructive unfair dismissal. We can quickly assess the merits of your case and give you a realistic indication of whether you are likely to have a strong employment tribunal claim. Our team will guide you through the entire constructive unfair dismissal claims process. We will discuss your options with you, including attempting to reach a settlement with your employer or former employer where possible.
Contact our employment law experts today
Are you an employee who has resigned or is looking to resign? Do you feel that you may be entitled to claim for constructive dismissal? IBB Solicitors has experienced employment solicitors who deal with constructive unfair dismissal claims for employees of all levels, so we can provide the clear, effective legal guidance and empathetic personal support you need, no matter what approach we need to take.
Contact our specialist constructive dismissal solicitors today on 03456 381381 or email your details to firstname.lastname@example.org.