What is a Constructive Dismissal?
At Lincs Law Employment Solicitors, we have received an increase in enquiries from clients who have resigned from their job and want to bring a Constructive Dismissal claim against their employer. Read on for more information.
Successful claims for Constructive Dismissal at the Employment Tribunal require very specific evidence and circumstances. These can be difficult claims to bring and it is therefore important that you take legal advice – ideally before you resign! However, if you have already resigned from your job and want to make a claim, we can help.
Do I Have a Claim for Constructive Dismissal?
If you have resigned from your job because of your employer’s behaviour, you may be eligible to bring a constructive dismissal claim. Constructive Dismissal claims are difficult to prove as very specific criteria need to be met before you resign. Also, the way you resign is also critical in ensuring you have a valid claim.
The first requirement is that you must have 2 years continuous service with your employer. If you have the necessary years of service, you then need to show that the following three requirements have been met.
Breach of Contract
The first requirement is that a fundamental (serious) breach of contract has occurred. This breach can either be of an express term in your contract of employment or an implied term in your contract of employment.
An express term is one of that is specifically referred to in your Contract of Employment. Please remember though that it needs to be a fundamental breach. Examples of a fundamental breach of an express term are:
- Your employer failing to pay your wages.
- Your employer unilaterally changing the terms of your contract. For example, if your place of work is stipulated to be Lincoln but your employer unilaterally changes your place of work to Devon.
An implied term is one that is not written in your contract, but it is implied that both you and your employer will respect and follow these terms. Examples of a fundamental breach of an implied term are:
- Breach of trust of confidence. Your employer can breach this term if they have bullied or harassed you or subjected you to a discriminatory act.
- Failure of your employer to provide you with a safe work environment.
The breach of contract can be a serious single act, or it may be series of smaller breaches which, when the circumstances are considered together, create a sufficiently serious breach.
You Resigned Because of This Breach
It is imperative that the reason for your resignation is because of this fundamental breach and that you inform your employer of this in your resignation letter.
- Because of the breach
Your resignation must be because of your employer’s breach of your contract.
- Resignation Letter
In your resignation letter you should explain that you are resigning due to your employer’s breach of your contract. You should explain the full circumstances of the breach.
You Resigned within a Reasonable Time
The timing of your resignation is also very important.
By bringing a constructive dismissal claim you are saying that the breach of contract you were subjected to was so severe you had to leave immediately. Therefore, is it important that you resign promptly after the breach of contract.
If there is a delay between the breach of contract and your resignation, your employer may be able to successfully argue that you accepted this breach through passage of time. If you have raised a grievance or complaint to your employer, this will go some way in avoiding any suggestion by your employer that you have accepted their behaviour.
Using the above example of an employer unilaterally changing the place of work from Lincoln to Devon. If the employee did not object to changing their place of work and started working from Devon, it is unlikely they would have a successful claim if they resigned 6 months later and attempt to bring a claim at that stage.
Lincs Law Employment Solicitors Can Help You
If you would like further help and advice in respect of a constructive dismissal claim, please call us on 01522 440512 for a free, no obligation, initial phone enquiry. For more information, please visit our website at https://lincslaw.co.uk/services/employees/resignation-dismissal-and-redundancy/resignation-and-constructive-dismissal/
Jasmine Stewart
Specialist Employment Solicitor
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