If your employer has fundamentally or seriously breached your employment terms and conditions and you have more than 2 years’ continuous service, you may be entitled to pursue a claim for Constructive Dismissal.
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Constructive dismissal (sometimes called constructive unfair dismissal) is when an employee feels forced to resign because their employer has fundamentally or seriously breached their terms and conditions of employment. Essentially, the employer’s actions mean that the employee feels that they cannot continue to work for their employer as the trust and confidence in the employment relationship has been destroyed.
If your employer has fundamentally or seriously breached your employment terms and conditions and you have more than 2 years’ continuous service, you may be entitled to pursue a claim for Constructive Dismissal. You must seek professional legal advice at the earliest opportunity to discuss whether you may have a claim or not as Constructive Dismissal claims can be difficult to pursue. To speak to our Employment Law specialists, please call .
There are no set circumstances grounds for any constructive dismissal case claim. However, the reasons below are more realistic suggestions for someone to resign, and more likely to have a claim for constructive dismissal: actions that could amount to a constructive dismissal claim, entitling an employee to resign are as follows:
If an employee does decide to resign in response to an employer's actions or failure to act, the employee can treat themselves as being "dismissed". When this process happens, it ’is known as a "repudiatory breach" breach of contract. Repudiatory means that it is so fundamental and so serious that it goes to the heart of the contract and destroys the trust and confidence in the employment relationship.
Choosing to resign is not a choice to be taken lightly as this can be a life-changing decision. Getting early legal advice is essential.
In terms of pursuing a claim for Constructive Dismissal, we strongly recommend taking the following steps:
If you feel that your contract has been breached, you should raise the issue with your Line Manager in the first instance. Most Grievance Procedures encourage raising issues informally in the first instance, and this can often help to resolve the issue quickly and without having to consider further action, including a Constructive Dismissal claim.
A grievance is a complaint in writing and employers are under a duty to investigate a complaint once it has been raised in writing under their internal Grievance Procedure. A formal grievance will be necessary if raising the issue informally hasn’t resolved the problem, or you feel that it is appropriate to go straight to the formal process.
If you are unable to resolve the issue through your employer's internal Grievance Procedure, then you may wish to consider pursuing a claim for Constructive Dismissal. However, we advise you obtain legal advice at the earliest opportunity to help you decide whether your case is viable, what a claim would involve and what you may receive in compensation if your claim is successful.
If you do resign because of your employer’s breach of contract you must start ACAS Early Conciliation within 3 months minus 1 day of your last date of employment. This is a mandatory process and if you fail to do this you will lose your right to bring a claim for Constructive Dismissal.
If you feel that your employer has fundamentally or seriously breached your employment contract, it is best to see if this can be resolved first before taking any legal action.
We cannot stress enough, that if you are considering pursuing a case for Constructive Dismissal, you should speak to our Employment Law specialists at the earliest opportunity.
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Part of a fair redundancy process is actually considering ways of avoiding dismissals altogether. It is likely that a dismissal will be unfair if an employer gives no consideration to whether there is a suitable alternative role within its organisation. This may even involve looking at whether there are any suitable vacancies in other group companies. It does not however mean that an employer has to create a vacancy where none already exists.
If you don’t think that the process was dealt with fairly, you should consider appealing the decision. If this still doesn’t resolve matters, then take some advice about whether you may have a claim for unfair dismissal.
It’s worth noting that you only have 3 months less 1 day from the date your employment came to an end to issue a claim for unfair dismissal in an employment tribunal. You have to contact ACAS before you can issue your claim, and this time limit can be extended to take account of the time you spend dealing with ACAS, but it is really important not to miss this deadline – if you do, you may not be able to bring your claim at all.
They aren’t the same thing. However, settlement agreements are often used in redundancy situations – either as an alternative to going through a full redundancy consultation process, or after conclusion of the redundancy process, perhaps where the employer feels that they might be at risk of a claim.
Settlement agreements are basically contracts that enable an employee to give up their rights to pursue legal claims that they may have against their employer. If an employer wants to offer an enhanced severance to an employee at the outset of a redundancy consultation process, as an alternative to going through that process, then getting the employee to sign a settlement agreement means that the employer won’t have to worry about the employee coming back and trying to claim unfair dismissal because the employer didn’t go through the full redundancy process.
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A guide for employees with essential information on employment rights, capability, conduct, gross misconduct, redundancy, illegality and automatic unfair dismissals.
