Constructive Unfair Dismissal
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Constructive unfair dismissal happens when an employee resigns in response to a breach of contract by an employer.
Constructive Unfair Dismissal can be complicated and it is vital that for employees and employers alike to get expert legal advice.
Normally, in order for an employee to succeed in a constructive unfair dismissal claim:
- There should be a breach of contract by the employer. Often employees rely on the ‘implied term of trust and confidence’, for example if the employee is being bullied or harassed.
- The breach should be sufficiently serious to justify resigning in response, or a final incident which is the ‘straw that breaks the camels back’
- The employee should not wait too long before resigning in response (seldom more than about four weeks or so from the last breach)
- The employee must actually resign in response to the breach, rather than some other unconnected reason.
- The employee should normally have exhausted the internal grievance procedure.
If an employee hasn’t been paid for the last three months, this is almost certainly going to be grounds to resign and claim constructive dismissal. In the bulk of cases, it’s rather less clear cut. Often employees will rely on breach of the implied term of ‘trust and confidence’ which underlies all employment relationships. There may be a one off breach, or a series of minor breaches over time which cumulatively destroy the employment relationship.
Both employers and employees need to carefully consider strategy when this kind of situation arises. Employees are obliged to go through the statutory grievance procedure and if done with care, this may avoid the need to issue proceedings at all. We have substantial experience in helping parties resolve these kinds of problems in a swift and cost-effective manner.