Resignation and Constructive Dismissal – Five Points to Remember
I regularly speak to clients who are distressed about the behaviour of their employers. They tell me they want to resign and claim constructive dismissal at the Employment Tribunal.
I always explain that a constructive dismissal claim needs to be carefully considered and make the following points:-
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 other types of claims (for example discrimination), which do not require any minimum period of employment before you have the right to pursue a claim at the Employment Tribunal.
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.
Your employer’s conduct must be more than their being unreasonable or unhelpful. It must be a 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.
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 or accepted your employer’s breach of contract. However, depending on the nature of the matter, the Employment Tribunal may expect you to use any internal procedures available before taking the drastic step of resigning. If you have made a complaint or started your employer’s grievance procedure, you have clearly not waived or accepted their behaviour.
When you resign, you must ensure your employer knows that you are acting in response to their breach of your contract of employment. Make your resignation letter as full and as detailed as possible, about what has happened and why you consider your employer has constructively dismissed you.
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 LincsLaw website at lincslaw.co.uk.