Constructive dismissal occurs when the employee resigns, usually with immediate effect, and can show that they were entitled to do so as a direct result of the employer's unlawful conduct. In order to win a claim of constructive dismissal the employee must be able to satisfy an employment tribunal not only that the employer acted in breach of a fundamental term of their contract of employment, but also that they did not accept the breach and that they resigned because of it.
It is quite common for an employee to inadvertently accept the employer’s breach of contract. For example, the employee might fail to immediately notify the employer that they refuse to accept the breach, or they might work on as normal hoping that things will improve. Such conduct might lead to the employee losing their claim.
Examples of a fundamental breach of contract include a cut in pay that has not been agreed by the employee, or a removal by the employer of a substantial part of the employee’s role. An employee in this position should seriously consider promptly raising a formal written grievance in accordance with the employer’s policy.
It is very important to take specialist advice as the window of opportunity to make a constructive dismissal claim is likely to be relatively short.
Because an employee has to resign in order to claim constructive dismissal, many are reluctant to do so as it means them suddenly being without both a job.
The frequently preferred option is to take advice from a specialist employment solicitor such as myself who will negotiate with your employer to try to achieve a settlement agreement to bring about the termination of the employment relationship as amicably as possible. If this is successful the employee is able to leave with some compensation, as well as an agreed reference. This option is preferable to many employees.
As a specialist employment solicitor I advise employees on all contractual matters, including constructive dismissal and contractual disputes. These include changes to your place of work, entitlement to holiday pay, overtime, commission or bonuses. I also advise on the enforceability of post termination restrictive covenants.
To discuss your situation, please call me today on 01892 538762 or 07900 695142.