Constructive Dismissal And Contracts
Constructive dismissal occurs where the employer does not dismiss the employee, but the employee resigns and can show that they were entitled to do so by virtue of the employer's unlawful conduct. In order to win a claim of constructive dismissal, the employee must be able to satisfy the employment tribunal that the employer acted in breach of a fundamental term of their contract of employment, that they did not accept the breach of contract and that they resigned because of the breach.
It is quite common for an employee who otherwise would have had the basis for a successful claim of constructive dismissal 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 work on as normal hoping that things will get better in the coming days or weeks. Such conduct is likely to be accepted by an employment tribunal as evidence that the employee accepted the breach of contract, meaning the employee will lose their claim. For these reasons it is very important to take specialist advice as the window of opportunity to make a constructive dismissal claim could well be relatively short.
Because an employee has to resign in order to claim constructive dismissal, many are reluctant to do so as it means suddenly being without both a job and an income. For these reasons, a good option is to take advice from a specialist employment solicitor who will try to negotiate on your behalf to achieve a settlement agreement to settle your potentially successful claim and bring about the termination of your employment as amicably as possible. If this is successful the employee can then 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 and 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.