What is the difference between unfair dismissal and constructive dismissal at the Employment Tribunal?
Clients frequently ask about the difference between unfair dismissal and constructive dismissal at the Employment Tribunal.
The simplest answer is that a constructive dismissal is where an employee is forced to resign or leave their job because of their employer’s behaviour. An unfair dismissal is where an employer has ended the employment relationship and dismissed the employee in a way that is unlawful. An unfair dismissal could include circumstances where an employee has unfairly lost their job through redundancy, after a disciplinary process etc.
It is, usually, easier to identify whether there has been a dismissal by the employer and, if so, whether it was fair or unfair for an unfair dismissal claim. The more difficult Employment Tribunal claim is where the employee has resigned as it is not always obvious whether there has been a constructive dismissal.
If you have resigned or left your employment because of the behaviour of your employer, you may be considering a claim for constructive dismissal at the Employment Tribunal. For this type of claim, you need to be very clear about what was the employer’s offending conduct. That conduct has to be serious and has to be a fundamental breach of your contract of employment.
It is sometimes difficult for clients to articulate exactly why they felt that they could no longer remain employed by their former employer. Often, they say that they had just ‘had enough’ and sometimes they give examples of being treated unfairly that go back several years. If you are contemplating this type of claim, you need to identify what actions your employer took that you were unhappy about and, also, why you believe those matters were serious and went to the very heart of your employment contract and relationship with your employer.
Examples of behaviour by an employer and Employment Tribunal have considered to be so serious include:
1. Failure to pay salary
2. Deducting payment without explanation or notice
3. Forcing unreasonable changes to shift patterns
4. Forcing a demotion upon the employee
5. Allowing harassment or bullying by other members of staff
An employer’s breach of your employment contract may be one very serious incident or, alternatively, a number of smaller incidents which together create a serious breach of contract. The latter type of breach of contract usually has a ‘Last straw’. Very simply, this is a last incident or action which brings the employee to the conclusion that they can no longer continue working for that employer.
There are a number of difficulties with constructive dismissal claims at the Employment Tribunal. Firstly, depending upon the particular circumstances, if a problem has been on-going for some time the Employment Tribunal would expect to see an attempt by the employee to resolve the matter e.g. with the Formal Grievance. Also, if there has been a serious breach of the contract of employment by an employer, and the employee continues to work for a number of months without taking any action, there may be an argument by the employer that the employee has accepted the breach of contract. For example, if your employer enforced a demotion upon you and you did not raise a grievance or a complaint; were you to resign several months later, your employers would suggest that you had accepted the change in your status by continuing to work under your contract without dispute.
Lincs Law can help you
Constructive dismissal claims are complex. If you are contemplating constructive dismissal at the Employment Tribunal, we would be delighted to hear from you. For a free telephone consultation, please call 01522 539501 and we would be happy to discuss your situation. For more information about constructive dismissal claims and Lincs Law Solicitors please visit our website at https://lincslaw.co.uk/services/employees/resignation-dismissal-and-redundancy/resignation-and-constructive-dismissal/
Specialist Employment Law Solicitor
Lincs Law Solicitors, Lincoln
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