Should I resign to claim constructive unfair dismissal?
Frankly, constructive unfair dismissal claims are often difficult to win. It is often better for an employee to raise possible constructive dismissal claim to negotiate an agreed severance, rather than resign, lose an income, and risk an uncertain outcome in the Employment Tribunal months down the line.
If you’re wondering what constructive unfair dismissal is, it’s when the employee resigns in response to a breach of an express or implied term or condition of employment by the employer. This is nothing if not a complex area of law, fraught with difficulties, but in general terms In order for an employee to be able to claim constructive dismissal, four conditions need to be met:
- There must be a breach of contract by the employer. This may be actual or anticipatory.
- The breach must be sufficiently serious to justify the employee resigning, or else it must be the last in a series of incidents which justify leaving.
- The employee must leave in response to the breach.
- The employee must not delay too long in terminating the contract in response to the employers breach, otherwise s/he may be deemed to have waived the breach.
If the 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 employee’s 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.
It is generally sensible for the employee to raise any such concerns in writing with the employer prior to taking any further steps such as resignation. See also what you might get if you win an unfair dismissal claim. Call us today for a free initial chat with a solicitor for some more specific advice on constructive unfair dismissal. Telephone 0207 118 0950. See also our page on Employment Tribunal Awards for unfair dismissal.