Constructive dismissal claims
If you think that you’ve got a claim for constructive dismissal then it’s worth giving Direct 2 Lawyers a call or making an enquiry by clicking on the link above. We’ll get straight back to you with clear, concise and punctual advice on the law and how it relates to your situation.
Please find below what you should look for initially so as to substantiate a claim for constructive dismissal. This is not a comprehensive review of the law but will allow you to consider your position. However, always seek qualified legal advice before taking substantive action.
When are you deemed constructively dismissed?
Constructive dismissal is the term used when you resign from your employment in response to a serious breach of contract by your employer. If you have been constructively dismissed you will not have been deemed to have resigned but to have been dismissed by your employer. You will effectively be seen as having been forced out of your job by the conduct of your employer. If you manage to assert constructive dismissal this will then allow you to pursue an unfair dismissal claim with the normal requirements and procedure applying.
There are four core elements to a constructive dismissal claim. These are:
- The employer must have made a “fundamental” or “repudiatory” breach of contract entitling the employee to resign (with or without notice). The breach can be actual or anticipatory; and
- The breach must be sufficiently serious to justify the employee resigning or the last in a series of incidents that justifies the employee leaving; and
- The employee’s resigning must be caused by the breach of contract and not for some unconnected reason; and
- The employee must not take too long about leaving
The ‘seriousness’ of the breach is looked at with reference to the express and implied terms of your contract of employment. A popular implied term relied on is that of ‘mutual trust and confidence’. Under the implied term of ‘mutual trust and confidence’ the employee and employer have a mutual obligation not to damage the relationship that exists between them through conduct by either party.
Should I submit a grievance first?
It is not strictly necessary to submit a grievance to your employer prior to resigning and complaining of constructive dismissal in the Employment Tribunal but it is recommended. A failure to do say may be frowned upon by the Employment Tribunal and could lead to you receiving reduced compensation, were you to be successful. If you have recently resigned then don’t panic – simply submit a grievance to your employer now, prior to bringing an Employment Tribunal claim.
Compensation for constructive dismissal
If you have been unfairly dismissed from your employment, you should be entitled to compensation. This is made up of a basic award and a compensatory award
The basic award is determined by your age and length of time you have been in employment. It is calculated in the same way as a redundancy payment.
The compensatory award is intended to compensate you for loss of employment, that is the financial loss resulting from the dismissal. This includes loss of wages up to the date of the Employment Tribunal hearing, as well as future losses.
You should be aware that you are under an obligation to keep your losses to a minimum – for example, by looking for another job. If you find another job quickly, any compensation payable to you will be reduced by the amount of money you have earned during the period which would otherwise have been your notice period.
The tribunal may reduce compensation payable to you if it finds that you have not taken reasonable steps to seek alternative employment. This will depend upon a number of factors including your experience and the state of the job market in your line of work. The compensation will be reduced by an estimated amount, representing the income that you should have been able to earn during the notice period.
Compensation for constructive dismissal is only available to employees who have worked for their employer for at least one year.
A claim for constructive dismissal needs to be lodged at the tribunal within three months of the date of the termination of your employment although ideally it should be lodged as soon as possible.
Please note that this is a brief outline of the core elements of constructive dismissal – these claims are complex. We recommend that you obtain independent legal advice prior to commencing any action.