Constructive Dismissal: An Overview

Workplace concerns, notably bullying, are gaining attention. Everyone deserves fair treatment and respect. An employee who is being treated badly by their employer may say they want to leave and claim constructive dismissal. What does this mean and when is an employee likely to have reasonable prospects of succeeding in a claim for unfair constructive dismissal? Below is a guide to the issues surrounding this often misunderstood topic. 

What is Constructive Dismissal?

At its core, constructive dismissal occurs when an employee feels forced to resign and claims that they have effectively been dismissed due to the employer’s bad conduct, such as altering contract terms without agreement, bullying, or harassment. 

Imagine if, unexpectedly, your employer reduces your pay or drastically changes your role. Such steps can make employees feel trapped, undervalued, and compelled to resign.

In the video below, our Employment Law paralegal, Aryan Gupta explains the basics of constructive dismissal in a quick video guide:

Constructive Unfair Dismissal vs. Unfair Dismissal

These two terms, while related, are distinct. Unfair dismissal covers cases when an employer terminates an employee’s contract without a fair reason or without following the right process. This encompasses situations that might lead to exploring settlement agreements   

Constructive unfair dismissal, on the other hand, arises when the employee decides to resign due to their employer’s actions, possibly resulting in employment tribunal claims. 

Constructive dismissal can be seen as a form of unfair dismissal. However, there are some distinctions to note: 

• Constructive Unfair Dismissal: This happens when an employee resigns due to their employer’s behaviour. The employer’s actions or negligence must signify a serious breach of the employment contract, making the employee feel that staying is no longer viable. While the employer has not explicitly dismissed the employee, their conduct has essentially pushed the employee to resign. For more details on workplace behaviours leading to such situations, you may find our article on bullying in the workplace informative. 
• Unfair Dismissal: Refers to cases where an employer terminates an employee without a just reason or without adhering to the proper procedure. Further distinctions between the two can be explored in our section on unfair or wrongful dismissal. 

For a claim of constructive dismissal, the employee must demonstrate three essential requirements: 

• There was an actual or anticipatory breach of contract which is a fundamental or repudiatory breach, i.e., one serious enough to justify the employee’s resignation, 
• The employee must resign in response to the breach, rather than some other reason, and 
• The employee must not delay too long in the termination of the contract in response to the employer’s breach. 

Moreover, a constructive dismissal claim might run parallel with other claims. For instance, if the employer’s conduct is believed to be discriminatory, a discrimination claim might also be valid. More on such issues can be reviewed under bullying, discrimination, or harassment claims. 

However, if there is no resignation (i.e., no “constructive dismissal”), the employee cannot claim constructive dismissal. However, they might have grounds for other claims based on the employer’s behaviour, such as discrimination. For those in such situations, seeking guidance from Anthony Gold Solicitors would be beneficial. 

Scenarios Leading to Constructive Dismissal

Constructive dismissal can arise from various scenarios. Recognising these situations is pivotal for establishing a case. Key triggers include: 

• Unplanned Employment Changes: If your employer changes your employment terms without your consent – like altering your role, relocating your workplace unexpectedly, or reducing your hours – it may signal constructive dismissal. 
• Consistent Hostile Work Environment: Persistent exposure to bullying, discrimination, or harassment can make resignation seem like the sole option. 
• Retributive Actions: Facing backlash for voicing concerns about workplace safety, unethical behaviour, or discrimination? Such retaliations, like sidelining or stifling growth, might qualify as constructive dismissal grounds. 
• Ongoing Oversight: When employers routinely ignore grievances or do not address raised concerns, it can evoke a sense of neglect, pushing employees to consider resignation. 

Building a Strong Case

Suspect you have been constructively dismissed? You may be able to strengthen your claim by: 

• Documenting Events: Log every relevant incident, including emails or letters that underline any misconduct or unsanctioned changes to your employment. 
• Securing Witness Testimonies: Having colleagues or others who can attest to what you have experienced is invaluable. Their accounts can offer a neutral view of events. 
• Engaging Legal Support Promptly: Before resigning, consult an employment lawyer. They can ascertain if your situation is indeed constructive dismissal and guide on next steps, such as exploring settlement agreements or prepping for employment tribunal claims. 

Legal Guidance in Constructive Dismissal Cases

Navigating the complexities of constructive dismissal underscores the need for specialist legal advice. 

• Navigating UK Employment Laws: British employment law is dense with details. A proficient solicitor provides clarity, directing you through your rights and potential avenues for redress. 
• Tactical Dispute Resolution: The right legal strategy often results in out-of-court solutions, conserving time and money. Solicitors can advocate for you, particularly during settlement agreements, prioritising your best interests. 
• Meticulous Evidence Gathering: A solid constructive dismissal claim rests on compelling evidence. Experienced solicitors ensure thorough collection and presentation, especially crucial in instances like bullying or harassment. 
• Emotional Support: Beyond just legal guidance, dealing with constructive dismissal is taxing emotionally. A solicitor is not just a legal guide but a steadfast ally, grasping the profound impact on you and championing your cause. 

Time Constraints in Claims

When pursuing a claim for constructive unfair dismissal at the Employment Tribunal, it is vital to act swiftly. Employees should submit their claim within 3 months minus a day from their dismissal date, which could be: 

• The conclusion of the notice period, or 
• The day they resigned if no notice was provided. 

Before submitting a claim, it is mandatory to engage with Acas for ‘Early Conciliation’. Only with an ‘early conciliation certificate’ from Acas can one then proceed with the ET1 Form at the Employment Tribunal.

Employers’ Proactive Steps

To promote a harmonious workspace and sidestep potential claims, employers can: 

• Prioritise Clarity: Clearly define employment terms from the start. Transparently convey any changes. 
• Promote a Welcoming Environment: Address workplace concerns like bullying or discrimination swiftly. Implement training initiatives to nurture an inclusive atmosphere. 
• Encourage Feedback: Allow employees to share their worries. An open-door ethos or consistent reviews can prevent issues from escalating. 

Constructive dismissal impacts both the employer and the employee. For workers, it is about asserting their rights, while for businesses, comprehending and amending root problems, such as wrongful dismissal, is pivotal for their brand and a thriving work culture. 

At Anthony Gold Solicitors, we prioritise bespoke legal guidance. Facing constructive dismissal or needing advice? Call us on 020 7940 4060. Our experienced squad is primed to support and navigate you through. 

FAQs: Constructive Dismissals

What does the term “constructive dismissal” mean?

It is when an employee resigns due to their employer’s actions or conduct. There must have been: 

• A severe breach of contract by the employer prompting the resignation. 
• The resignation arises from the breach and not an external factor. 
• Immediate action is required; undue delay might suggest acceptance of the breach. 

To pursue a claim, you should: 

• Be formally recognised as an employee. 
• Have ‘resigned’, is viewed as a dismissal under the Employment Rights Act 1996. 

• Generally, the right against unfair dismissal emerges after two continuous years of employment. However, numerous exceptions exist, particularly around dismissals deemed automatically unfair. 

Constructive dismissal is a very complex area of employment law. Should you sense a potential claim, engaging a knowledgeable employment lawyer is imperative. 

What are some examples of constructive dismissal?

Constructive dismissal can arise from various situations, such as: 

• Reducing an employee’s salary without consultation. 
• Mandating hours not stated in the employment contract. 
• Subjecting an employee to a hostile environment due to bullying or discrimination. 
• Drastic, unwarranted changes to job roles. 
• Non-payment for completed overtime work. 
• Retaliation after an employee exposes employer malpractice. 
• Failing to provide contractually agreed work. 
• Imposing excessive disciplinary measures. 

Each case is distinct, and it is crucial to evaluate the specifics to identify a constructive dismissal. If in doubt, seeking legal consultation is advisable. 

Can I claim constructive dismissal if I was dismissed?

No. Constructive dismissal relates to cases where employees resign due to an employer’s adverse actions. If you have been dismissed, it typically would not classify as constructive dismissal. Yet, depending on your dismissal’s nature, you might have a basis for claims like unfair or wrongful dismissal. Consulting an employment law expert can provide clarity on potential actions. 

What compensation can I expect from a successful constructive unfair dismissal claim at an Employment Tribunal?

The compensation for constructive unfair dismissal aligns with that for unfair dismissal and consists of: 

• Basic Award: Reflecting the unfair dismissal and compensating for job security loss, it mirrors redundancy payment calculations. Calculate your statutory redundancy pay. 
• Compensatory Award: Designed to recompense for financial losses from the unfair dismissal. It has an upper limit set at the lower of: 

– £105,707 (effective from 6 April 2023) or 

– A gross salary of 52 weeks. 

How can Anthony Gold Solicitors help me in managing constructive dismissal claims?

At Anthony Gold Solicitors, our adept employment law team consistently achieves significant settlements in constructive dismissal claims. Our unwavering dedication to upholding client rights, coupled with our expertise, positions us prominently in employment law spheres. Beyond this, we guide clients through workplace disputes, discrimination issues, and more. 

What forms of evidence are required to substantiate a constructive dismissal claim?

To strengthen a constructive dismissal claim, it is essential to provide concrete evidence illustrating the employer’s significant breach of your employment contract or any unreasonable treatment, such as harassment. Mere assertions without supporting evidence might not hold much weight.

Key forms of evidence in a constructive dismissal case include:

• Written documents: This can encompass emails, text messages, or other electronic communications that shed light on contentious issues. 
• Audio or video recordings: These can be potent tools, provided they are legally obtained. 
• Testimonies: Written statements from colleagues or other individuals who have witnessed or are aware of the problematic behaviour or actions can significantly bolster your claim. 

It is important to be diligent and methodical in collecting and safeguarding all relevant evidence. Should you find yourself uncertain or overwhelmed, seeking advice from a seasoned employment lawyer at Anthony Gold Solicitors can provide clarity and direction. 

If you want legal advice related to constructive dismissal or any other employment law case, you can contact us by emailing at mail@anthonygold.co.uk, calling on 020 7940 4060, or visiting the Anthony Gold website.