Constructive dismissal:
We receive frequent calls from employees who believe they have a constructive dismissal claim. On investigation this is very rarely the case in this complex area of employment law. If you think your employer is treating you intolerably you need to get expert legal advice from an employment lawyer and get it very rapidly.
The basic facts that you must be able to prove to a Court or Tribunal to bring a constructive dismissal claim are:-
Your employer has breached a term of your employment contract
The terms that was breached was a fundamental term of your employment contract
You have resigned very quickly following the breach
If you satisfy the above criteria, then you have a constructive dismissal claim.
In a constructive dismissal claim the term breached may be an obvious and express term, such as payment of wages. In many cases it will not be as clear as this, but you may still be able to bring a constructive dismissal claim. For example, you may have had your job role changed. The most common breach relied on is an implied term of trust and confidence between employer and employee. So, for example, bullying and harassment by a line manager that has not been properly dealt with, may be a breach of this implied term and you may have a constructive dismissal claim, provided you can prove the other elements
This simply means that the term your employer breaches must be so serious it justifies you resigning and bringing a claim for constructive dismissal. For example, failure, or a refusal, to pay commission due and owing for a month would be grounds to resign and claim constructive dismissal. It may be the case that there have been a number of smaller incidents, such as where there has been bullying, and that over time these incidents built up and eroded the relationship, the final incident being ‘the straw that broke the camel's back' which leads to the constructive dismissal claim.
For a successful constructive dismissal claim the resignation must be because of the breach and should occur very quickly after the breach or after the final incident. If left too long, the court or tribunal will find that the employee has waived the right to claim constructive dismissal.
The most common problems in showing constructive dismissal is proving that the term breached is sufficiently serious and that the employee had acted quickly enough after the incident complained of. It is often an uphill battle to prove constructive dismissal and, even if it is proven, there is still a need to show the dismissal is unfair, which makes it a two hurdle race.
If you think you may have issues which could give rise to constructive dismissal then it is imperative to get fast and practical legal advice
