In claims of constructive dismissal, one of the most crucial pieces of evidence the Employment Tribunal will consider is the employee’s resignation. Read on for more information about what should and should not be included.
Constructive Dismissal Claims
The clients who contact us about constructive dismissal have a wide number of complaints about their employer. They have explained how they feel forced to resign for bullying at work, pay 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 very difficult to pursue and, if they are considering resigning in anticipation of such a claim at the Employment Tribunal, there are some 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. If you do not have two years’ service, there are some exceptions to the two-year rule and other types of claim (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 submitting your resignation in anticipation of a constructive dismissal claim.
2 – Repudiatory Breach of Contract
Constructive dismissal is where you submit your resignation 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” which is often used where there has been bullying and harassment.
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 accepted your employer’s breach of contract.
5 – Internal Procedures
For the vast majority of employee complaints, the Employment Tribunal will expect an employee to use any internal Grievance or Complaint policy the employer has. If the employer has no such policy, they will be expected to abide by the ACAS Code of Practice on Disciplinary and Grievance Procedures in any event. Failure to use the internal policy before submitting your resignation could result in any subsequent compensation awarded be reduced by up to 25%.
What Should You Include In Your Resignation?
When you submit your resignation, 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. You need to:-
- Provide a brief background of your issue;
- Identify the term of your employment contract in dispute;
- State how you believe your employers have breached that term of your employment contract;
- Explain the impact upon you of your employer’s breach (have you lost money, has your health been affected etc);
- Set out your attempts to resolve the dispute (internal grievances etc) and explain why you are unhappy about the outcome; and,
- Explain you are submitting your resignation because of your employer’s breach of your contract.
Let Lincs Law Employment Solicitors Help You
Although we hope our pages are helpful, they are no substitute for legal advice about your specific 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 440512. Alternatively, for more information, visit our website at www.lincslaw.co.uk
Sally Hubbard, Specialist Employment Law Solicitor
Lincs Law Employment Solicitors, Lincoln
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