This post seeks to help people considering make a claim for constructive dismissal to prepare for the issuing of their claim in the Employment Tribunal. This includes a look at the substantive nature of their constructive dismissal claim, what evidence they should obtain, and when they should seek to instruct (potentially no win no fee) constructive dismissal solicitors on their behalf.
- Make sure you’ve got a relatively strong claim for constructive dismissal
- Write down everything that’s happened to you (your “preliminary statement”) in
- Obtain evidence
- Identify the reasonable value of compensation in your claim for constructive dismissal
- Objectively analyse the strength of your constructive dismissal claim
- Obtain the forms you’ll need to make your claim for constructive dismissal
- Try and settle before issuing your claim for constructive dismissal in the Employment Tribunal
- See if you can find a no win no fee constructive dismissal solicitor
- Start applying for jobs
- Submit your constructive dismissal claim on time
If you have been forced to resign from your job (or think that you may be forced to resign) as a result of your employer’s conduct then you may have a claim for constructive dismissal. There are a number of “qualifications” that Claimants (i.e. people making a claim in the Employment Tribunal) must fulfil to make a claim for constructive unfair dismissal. They must have at least one year’s continuous service with their employer and they must have resigned from their employment. If you’ve been dismissed from your employment (or “fired”) then your claim is not for constructive dismissal, it’s for unfair dismissal.
If you fulfil these qualifications then you’ll want to know whether your constructive dismissal claim has a prospect of success. In order to be deemed “constructively dismissed” you’ll need to tick the following boxes:
- That there’s been a breach of an express or implied term in your contract of employment; and
- That this breach is fundamental to your contract of employment; and
- That this breach is sufficiently serious to justify your resignation; and
- That there isn’t an overly long period of time between the breach and your resignation
If you tick all of the above boxes then you will probably have a reasonable prospect of success in your (no win no fee) constructive dismissal claim.
One of the most important pieces of evidence in your claim will be your testimony at the Employment Tribunal. You will often be the only person who has access to and understands the facts of your constructive dismissal case. It’s therefore important to write down everything that you remember about your case – no matter how insignificant you deem it to be. Memories fade – don’t let yours let you down.
There are generally two types of evidence in a case for constructive dismissal: witness evidence and documentary evidence. Witnesses are people who know key facts about the case – for example, your employer’s attitude towards you. Documentary evidence encompasses a broad range of things, from emails, to letters, to databases, and even audio recordings.
Have a think about whether anyone at your workplace (or even people outside of your workplace) witnessed key events or knows key facts relating to your case. It’s generally pretty obvious who knows important facts – for example, if Barry witnessed your employer threatening you then Barry has witnessed a key event in your case. Write down all the people that you think know important things that will be in your favour. Once you’ve done that then give them a call. It’s better to speak to them first rather than sending an email out of the blue as you’re more likely to be able to persuade them to help you. However, don’t be offended if these people can’t or won’t help you – they may be intimidated by their employer or they may not know as much as you thought. However, if they do know important facts then get them to write this down as soon as possible and send it to you.
Briefly, a claim for constructive unfair dismissal is composed of a basic and a compensatory award. Your basic award is calculated in a similar way to a redundancy payment. Your compensatory award is, effectively, what you’ve lost in wages or contractual benefits between the date of your resignation and either the date you got a new job or the date of your Employment Tribunal (and possibly onwards from that, depending on the circumstances).
It’s important to arrive at a reasonable value for your constructive dismissal claim – very rarely will you be awarded all that you’re claiming for, for one reason or another. You’ll also have to factor in the fees that you’re paying your no win no fee constructive dismissal solicitor, should this apply. These fees generally range from 25% to 33% of compensation in your case – but they can make all the difference in winning or losing.
Talk about your potential claim for constructive dismissal with trusted friends and family. Put the facts of the case to them and educate them on the law relating to your claim. This will help you clarify your understanding of the legal position and will allow (relatively) impartial third parties to identify what the potential strengths and weaknesses of your claim are.
To start your claim for constructive dismissal in the Employment Tribunal you’ll want to get your ET1 form. You can obtain this from here (and a list of all the precedents available from our website is here). Fill out your ET1 form (we’ll be writing a post later this week on how to fill out an ET1) and submit it by email to the relevant Employment Tribunal.
It’s always worth trying to engage with your former employer before you issue your claim for constructive unfair dismissal in the Employment Tribunal. Write a letter to the appropriate person at your former employer setting out what’s happened to you, the nature and strength of your case, and how much you think your claim is reasonably worth. Make an offer of settlement to them and propose a compromise agreement.
Even if you don’t intend to instruct a no win no fee constructive dismissal solicitor it’s worth giving a firm of specialist employment lawyers a call to “bounce” your ideas off them and get an idea as to the strength of your claim. If, after a consultation, the no win no fee unfair dismissal solicitor is willing to take your claim on then you can be fairly sure that you’ve got a reasonably strong case. From there, it depends on you as to whether you want to instruct a solicitor to take your case on or not. Our post “10 questions to ask a no win no fee unfair dismissal lawyer” may help you with this.
Trying to find a job is important for a number of reasons – not least the fact that you won’t have an income if your resign! However, you also should try to find a new job for reasons related to your constructive dismissal claim – you have a duty to mitigate your losses. A failure to look for new employment may potentially (dependent on the circumstances) be viewed as a failure to mitigate your losses. If this was the case then your compensation could be reduced.
Absolutely crucial. You have three months less one day from the date of your resignation to make a claim for constructive dismissal to the Employment Tribunal. So, for example, if you resign from your employment on 2 April 2012, you should submit your claim to the Employment Tribunal on or before 1 July 2012. If you fail to submit your claim on time then it will often be extremely difficult to get the Employment Tribunal to accept it, unless you’ve got a very good reason for it being late.
If you have instructed a (no win no fee) constructive dismissal lawyer then this will be one of their jobs. However, it’s a good idea to keep in regular contact with your specialist employment lawyer – you can ascertain at an early date if they’ve got facts wrong and it may sometimes help to hurry them along (if they need it).
Redmans Solicitors are London employment lawyers and their solicitors are based in Richmond. They are specialist unfair dismissal solicitors and constructive dismissal solicitors but also provide compromise agreement advice.