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What is Constructive Dismissal?
Constructive Dismissal is where an employer has committed a serious breach of contract, entitling the employee to resign in response to the employer’s conduct. The employee is entitled to treat him or herself as having been “dismissed”, and the employer’s conduct is often referred to as a “repudiatory breach”.
It can be difficult for a non-legal person to understand why your resignation should be referred to as a “dismissal”. All you need to know is that in legal terms, the actions of your employer (the “constructive part”), has led to your resignation (the “dismissal” part). The law then treats the resignation as a form of unfair dismissal by your employer or to quote the full correct terminology, “constructive unfair dismissal“.
It is not enough to show merely that your employer has behaved unreasonably. There must be a fundamental breach of either an express contractual term, or the implied term of “trust and confidence”. Furthermore, you must have resigned because of the actual breach- not for some other reason. You should also make it clear at the time that you regard yourself as having been “constructively dismissed”.
How easy is it to make a claim for constructive dismissal?
Firstly, and most importantly, you must have been continuously employed with the same employer for a period of 2 years in order to bring a claim. This is unless your case falls within one of the few exceptions where no minimum service is required, for example, where it relates to discrimination.
If you can show that your employer has fundamentally acted in a way that makes your position untenable and goes to the root of your employment relationship, then your claim may well succeed. The onus is, however, on you to prove that your employer was in breach. This differs from unfair dismissal claims where it is for your employer to prove that there had been a fair dismissal.
In many cases, the conduct amounting to a breach by an employer will be obvious. In many situations, however, it will be more of a grey area. Yes, your employer may have behaved badly, but was it so bad that it made your continuing to be employed untenable? If the matter reached the tribunal stage, it will be determined on its own facts, and what is considered “reasonable”.