Constructive dismissal is where the employee brings their employment to an end, usually by resigning. If this is not your situation and your employment has been ended by your employer, please visit our information about unfair dismissal on our website at https://lincslaw.co.uk/services/employees/resignation-dismissal-and-redundancy/unfair-dismissal/
If you are considering resigning your employment and making a claim for constructive dismissal at the Employment Tribunal, read on. We always hope the information and guidance on our website pages is helpful. However, they are no substitute tailored, bespoke advice about your constructive dismissal claim. Call us for a free, no obligation enquiry on 01522 440512 or fill out our contact form and one of our specialist, fully qualified Employment Solicitors will call you.
Review from Constructive Dismissal client for Sophie Goodwill, Director, Specialist Employment Solicitor
“Sophie has helped me tirelessly from start to finish with the entirety of my legal proceedings. Sophie made sure that my claim/relevant documents were submitted on time to ensure we could continue and not make any silly mistakes. My instructions were always followed but I would often receive advice on different ways we could approach certain subjects to improve our chances of success. In times where I would be frustrated or angry at the circumstances, Sophie would keep a level head and help me refocus on the task in hand, also making sure I always fully understood the impact any of my decisions may have on my case. Sophie made sure that I had full understanding of any documents or events that we were dealing with, there was never any surprises. Finally, Sophie gave me hope during a time where everyone was trying to take it away from me. It was refreshing for someone to believe me 100%, this support helped me through some very dark times.
I honestly believe there is nothing more Sophie could have done for me”.
Constructive Dismissal
Constructive dismissal claims can be the result of a wide number of complaints clients have 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 have constructive dismissal claims, 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 – The Must Be A 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. It is important, therefore, to identify what the contractual term is that has been breached.
Sometimes this is obvious, for example, salary and pay obligations. An express term in your contract about what you should be paid and when is easy to identify. Also, it is easy to evidence and identify when that term has been broken.
If you do not have a contract and/or you are having to rely on implied obligations, then identifying the contractual term and then assessing whether there is a breach becomes more difficult. For example, where clients state they have suffered bullying by their employer, they often suggest the relevant term in their contract is an implied term of “trust and confidence”. However, it can sometimes be difficult to clarify what the employer and employee understand by mutual trust and confidence as an implied term in the contract of employment. This then causes problems in assessing whether that term has been breached.
Sometimes our clients say the want to resign and bring a claim for constructive dismissal because their employer has started disciplinary, performance management or some other type of internal procedure. Where the employer has a procedure, especially if it is referred to in the employment contract/terms and conditions, then any action they take is likely to be permitted by the contract. As such, it will not be a breach. The situation may change if there is an extra element in the decision to start a procedure. For example, discrimination or retaliation for an employee being a whistleblower.
3 – Repudiatory Breach of Contract
Once you have identified:
- the relevant contractual term (express or implied); and then,
- that there has been a breach of that term;
the next consideration is the seriousness of the breach. Your employer’s conduct must be so serious as to be a “repudiatory breach” of your employment contract.
You need to be clear why you consider the breach is so serious as to be a repudiatory breach of your contract of employment. It may be that it is a single event, such as refusing to pay you or withdrawing benefits. It could be a culmination of a number of events and incidents, such as a manager making derogatory comments, with a “last straw”.
For example, if your employer had a payroll issue and your salary arrived a day late with explanations and apologies, this would likely be a breach of your contract. However, one isolated incident would be unlikely to be considered serious enough to be a repudiatory breach for the purposes of a constructive dismissal claim. However, if late payments happened repeatedly, causing you distress and financial difficulty, then this may well be a repudiatory breach with a last straw being the final time when you decided to take action.
4 – Resignation In Response
Having identified:
- the relevant contractual term (express or implied); and then,
- that there has been a breach of that term; and then,
- that the breach is so serious as to be a repudiatory breach (single incident or many incidents with a last straw);
your resignation will need to be in response to that breach of contract by your employer. An employee is expected to act promptly from the serious single event or incident or the last straw. Any delay can weaken a future claim. If you continue working without protest, the Employment Tribunal may consider that you have “affirmed” the contract. Effectively meaning you have agreed the employer’s breach. That being noted, a short period to seek legal advice or attempt to resolve the situation internally using your employer’s procedures is usually acceptable.
Indeed, for the vast majority of employee complaints, the Employment Tribunal will expect you to use any internal Grievance or Complaint policy your 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. That being said, you should not allow the situation to go on too long as, again, the Employment Tribunal may consider that you have “affirmed” the contract. More information about what to put in a formal complaint or grievance is available on our website at https://lincslaw.co.uk/blog/how-do-i-raise-a-complaint-or-grievance-at-work/
5 – Resignation With or Without Notice
The idea of constructive dismissal and a fundamental breach of contract is, of course, that your employer’s behaviour has meant you cannot continue in their employment. This is a difficult concept for an employee to reconcile if they decide to work their notice period. Certainly, this could complicate a claim of constructive dismissal. The Employment Tribunal may question whether the resignation was truly in response to a fundamental breach, as working notice can imply agreement to the contract’s continuation.
However, there are exceptions:
- Practical Necessity: It may be you have to work your notice period out of financial necessity or to comply with statutory obligations.
- Mitigation of Loss: You could suggest working your notice is an attempt to mitigate financial losses caused by your employer’s breach of contract.
- Clear Evidence of Breach: If the fundamental breach by your employer is well-evidenced and severe, the act of working notice may not undermine the claim.
You will need to make clear in your resignation letter that you are leaving due to your employer’s breach of your contract of employment and that any continuation to work (e.g., during the notice period) should not be considered as you affirming the contract.
What Should You Include In Your Resignation?
Further to the above, if you are contemplating a future constructive dismissal claim, 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 you say has been breached;
- Explain why you believe your employers have breached that term of your employment contract. If in your situation you have a last straw, explain what that is;
- Explain the impact upon you of your employer’s breach and why you say it was a repudiatory 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;
- Explain you are submitting your resignation because of your employer’s breach of your contract; and,
- If you are working a notice period explain why and that your notice should not be considered as you affirming the contract.
Employment Tribunal Time Limits
If you do resign your employment and want to bring a claim of Constructive Dismissal at the Employment Tribunal, you need to be very clear about the time limits. As a general rule, you must submit your claim to the Employment Tribunal within three months of your last day of employment. You use the last day of your employment as the first day when calculating the time limit. For example, if your last day of employment was 30th June, your claim would need to be submitted to the Employment Tribunal on or before 29th September.
However, please note, before submitting your claim you will first have to go through the ACAS Early Conciliation Process. Employment Tribunal time limits can be extended if you are going through the conciliation process when your Employment Tribunal time limit would normally expire. However, if you do not start the ACAS Early Conciliation Process within the normal time limit, you will not receive any extension to submit your claim.
Employment Tribunal time limits are incredibly strict and if you have been dismissed you should seek legal advice immediately. Claims submitted “out of time” will not be accepted by the Employment Tribunal and in those circumstances your ability to pursue your claim will be lost.
Let Lincs Law Employment Solicitors Help You
If you feel like you have to leave your job, before taking any steps to resign please take legal advice on your situation. You may find that after speaking with one of the qualified and experienced lawyers at Lincs Law Employment Solicitors, there are other options available to you. For example, you may be advised that before you resign you should submit a grievance to your employer; see our free downloadable guides or our blog post https://lincslaw.co.uk/blog/need-to-send-a-grievance-or-complaint-to-your-employer
We hope the information on our website is helpful to you, but nothing is better than discussing your situation with a fully qualified employment solicitor. If you would like a no obligation, free consultation, please use the contact form, engage in a web chat, email contactus@lincslaw.com or call us on 01522 440512
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