In this post we’re going to look at constructive dismissal claims; providing example constructive dismissal claim forms and giving a short explanation of what constructive dismissal is, when you may have been constructively dismissed, and providing a constructive dismissal ET1 example.
- Short explanation of constructive dismissal
- Have I been constructively dismissed?
- Constructive dismissal ET1 form (and run-through)
- Time limit in constructive dismissal claim
Short explanation of constructive dismissal
Unlike a claim for unfair dismissal (where the employee is fired by the employer), constructive dismissal occurs when the employee resigns from their employer instead of being dismissed. However, in order to claim constructive dismissal the employee has to show that they were entitled to resign from their employment because of their employer’s conduct.
An employee’s right to claim constructive dismissal is contained within s.95(1) of the Employment Rights Act 1996. Under s.95(1) an employee may resign with or without notice. However, as stressed above they must be entitled to resign. So, how do you know whether you’re entitled to resign from your employment or not? The courts have traditionally used two types of test to determine whether the employee is entitled to resign by virtue of the employer’s conduct:
- The traditionalist “contractual” test
- The mutual trust and confidence breach test
The traditionalist contractual test looks at the terms of the employee’s contract and analyses whether the employer is either already guilty of conduct which is a significant breach of the employee’s contract of employment or is guilty of conduct that shows that they no longer intend to be bound by one or more of the essential terms of the contract. The employer’s actual or intended breach, however, must go “to the root” of the contract – it must be both subjectively important to the employee and objectively important. Such breaches normally include changing an employee’s working hours without notice (without a contractual right to do so), intentionally failing to pay the employee, or changing the employee’s place of work.
The mutual trust and confidence breach test takes a broader look at the employer’s conduct towards the employee and asks whether the employer has acted so unreasonably that the employee can no longer trust the employer. The employer’s conduct has to be particularly unreasonable for this test to be met – an angry word in the corridor, for example, wouldn’t suffice (unless it was the latest in a long string of such incidents).
As well as both of the above tests having been met, the following elements have to be present to successfully claim constructive dismissal:
- A repudiatory breach on the part of the employer (using the above tests)
- Which has been accepted by the employee as terminating the contract; and
- Is one reason for the resignation (and normally a significant one); and
- The employee hasn’t left it too long before the employer’s breach of contract and their resignation
Have I been constructive dismissed?
There are many examples of conduct which can potentially constitute unreasonable behaviour on the part of an employer and entitle an employee to resign from their job. Among the most common constructive dismissal examples are (among others):
- Your employer reducing your salary or commission without notice
- Your employer changing your duties (either by adding or removing duties)
- Discrimination by co-workers towards you
- A failure to address a grievance; and
- Giving you an excessive workload
Constructive dismissal ET1 form (and run-through)
We’ll now run through this example constructive dismissal ET1 form.
Fill in your personal details, including your name and your address. (IMPORTANT: any “asterisked” fields MUST be completed – for example, your name and address in section 1)
Fill in your employer’s business details, including their name, address and telephone number.
Fill in the details of your employment at your employer, including when you started work, whether your work is continuing (it isn’t if you’re making a constructive dismissal claim), and what you did.
Complete details of the earnings and benefits that you received at your previous employment. Include your salary and any other benefits that you received (i.e. bonus, commission, health insurance etc.)
Complete details of your constructive dismissal claim. You MUST complete this properly as it is the basis for your claim. Tick the “I was unfairly dismissed (including constructive dismissal)”. Tick the other boxes (discrimination etc.) as appropriate.
Along with section 5, possibly the most important section of the claim form. You must set out all details and factual background to your constructive dismissal claim. Failure to do so may mean that you’re prohibited form using certain evidence or claiming for certain rights in the Employment Tribunal.
This section is not compulsory and is best left until you submit a Schedule of Loss (in line with the Tribunal directions) in your constructive dismissal claim.
Time limits in constructive dismissal claims
There are strict time limits in constructive dismissal claims. You must file your constructive dismissal ET1 form and claim within three months less one day of the date of the date that you communicated your resignation to your employer.If you fail to do so then you may be prevented from submitting a constructive dismissal claim. In some circumstances it can be straightforward to work out what the relevant dates are but it can be complicated in other circumstances. It’s best to take specialist advice from an employment lawyer in these circumstances.
Redmans Solicitors are London employment lawyers and offer employment law advice to employees and employers. They are specialist unfair dismissal no win no fee solicitors and off Employment Tribunal no win no fee representation