Constructive Dismissal – Five Points To Remember Before You Resign
Nearly every day, I speak to a client who wants to resign and claim constructive dismissal at the Employment Tribunal. This is usually because their employer’s behaviour has made it difficult, sometimes impossible, for them to continue in their job. Read on for five points to remember about constructive dismissal.
The clients who contact us about their constructive dismissal have a wide number of complaints about their employer. They have explained how they feel forced to resign for bullying at work, salary problems, unfair performance management, unfair work allocations etc. Therefore, whilst they all want to claim constructive dismissal, their reasons for resigning are all very different.
I explain to all clients considering this course of action that constructive dismissal claims are difficult to bring and, if they are considering resigning in anticipation of such a claim at the Employment Tribunal, there are five points they need to remember:-
1 – Length of Service
Like ordinary unfair dismissal, you will usually have to have worked for your employer for two years before you can bring a claim of constructive dismissal at the Employment Tribunal. However, if you do not have two years’ service, there are some exceptions to the two-year rule and other types of matters (for example discrimination) which do not require any minimum period of employment before you can pursue a claim. However, this is something you need to consider before taking any steps in anticipation of a constructive dismissal claim.
2 – Repudiatory Breach of Contract
Constructive dismissal is where you resign or leave your employment in response to a serious breach of your contract of employment by your employer. Your employer’s conduct must be so serious as to be a “repudiatory breach” of your employment contract.
3 – Identify The Contractual Terms Which Have Been Breached
Your employer’s conduct must be more than their being unreasonable or unhelpful. It must be a repudiatory breach of a fundamental term of your employment contract. This could be an express term, for example a serious pay dispute. Alternatively, it might be a breach of an implied term, for example a serious breach of “trust and confidence”. The Employment Tribunal have found the following to be repudiatory breaches of an employment contract – serious pay issues, health and safety disputes, bullying or harassment, discrimination and significant changes to working hours.
4 – Resignation In Response
You cannot wait too long before taking action. Your resignation has to be in response to the breach of contract by your employer. If you do nothing, the Employment Tribunal may conclude you have waived your employer’s breach of contract.
5 – Make Your Resignation Clear
When you resign, you must ensure your employer knows that you are resigning in response to their breach of your contract of employment. Make your resignation letter as full and as detailed as possible. Explain what has happened and why you consider your employer has constructively dismissed you.
Help From Lincs Law Employment Solicitors
Although we hope our blogs and posts are helpful, they are no substitute for legal advice about your situation. If you are having problems with your employer and are thinking of resigning, why not call for a free, no obligation, telephone consultation on 01522 539501. Alternatively, for more information, visit the Lincs Law website at www.lincslaw.co.uk
Specialist Employment Law Solicitor
Lincs Law Employment Solicitors, Lincoln