Unfair Dismissal is widely known and understood – it arises when an employer terminates an employee’s employment and the employer is unable to establish that they had a fair reason and/or followed a fair procedure. But what does it mean when circumstances arise where an employee feels they have no other option but to resign – could it be a successful Constructive Unfair Dismissal claim?
Employees often assume that Unfair Dismissal claims only arise when the employer actively terminates their employment. However, a Constructive Unfair Dismissal claim is different. There can be circumstances where an employee’s resignation may, in reality, amount to a dismissal by the employer.
What Is Constructive Unfair Dismissal?
Constructive Unfair Dismissal claims are tricky, and they can be difficult to establish. They can arise where an employee resigns in response to a fundamental breach of contract at the hands of their employer. Examples of what a fundamental breach of contract could look like would be as follows:
- Unilateral deductions of wages;
- Bullying or harassment;
- Discrimination;
- Demotions without justification;
- Breach of health and safety laws;
- Etc.
In essence, the employer needs to conduct themselves in a way which is likely to or does seriously damage the employment relationship.
There also needs to be a direct link between the employer’s conduct and the employee’s decision to resign as well as ensuring the employee did not delay causing them to affirm the employer’s behaviour.
How Does This Work In Practice – Case Study
Constructive Unfair Dismissal claims can arise from a single incident, but it is more common for there to have been a series of events rather than a one-off isolated moment.
To give an example of a series of events, below is a recent case study.
Client ‘A’, had been employed for four years and during the first three years, there were no issues in their employment. They had a good working relationship with their employer and peers. However, in their third year of employment they had a new line manager. The new line manager very quickly began to ‘micromanage’ their working life and soon after conducted a yearly performance review. Whereas previous years the employee had always exceeded expectations, now they were not meeting expectations. On the employee questioning this, the line manager’s conduct deteriorated, and the employee felt compelled to submit a Formal Grievance. Unfortunately, that Formal Grievance was not managed appropriately and it was not upheld. The employee resigned in response to the Formal Grievance outcome.
Practical Advice For You
The first practical advice, as an employee, would be to proceed with caution. Resigning prematurely can significantly weaken a Constructive Unfair Dismissal claim.
Before resigning, employees should:
- Keep a detailed record of incidents;
- Where possible create a paper trail and retain this correspondence;
- Raise a Formal Grievance before resigning;
- Seek legal advice at an early stage.
How Can Lincs Law Help You?
Lincs Law provide bespoke Employment Law advice. We are happy to have an initial conversation with you to learn of your Employment Law concerns and, thereafter, we offer an initial Fixed Fee Consultation; https://lincslaw.co.uk/fees/employees/
If you would like to Contact Us, please email us at ContactUs@lincslaw.com or telephone 01522 440512.
Lucy Stones
Specialist Employment Law Solicitor
Lincs Law
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