Claim for Constructive Dismissal
The law says that an employee can make a claim for constructive dismissal where their employer’s actions or inaction create intolerable working conditions and they feel they have no choice but to resign. The basic employment tribunal compensation award for a successful claim is one and a half week’s pay per year of service (with some exceptions).
The term constructive dismissal refers to situations where the employee resigns as a result of an employer’s breach of an express or implied contract term. These can include terms such as those that relate to an implied term of mutual trust and confidence, or any other implied term. These are not the only types of breach that can be alleged as constructive dismissal; the behaviour or action of an employer may also amount to a fundamental breach of the terms of their employee’s contract of employment by making those contracts unenforceable.
To be able to claim that they have been constructively dismissed, the worker must have first raised their concerns with the employer in a reasonable manner and been unsuccessful in having them remedied before they resign from their position. This is very different from the requirements for unfair dismissal, where a worker can only be terminated on fair grounds and they must have been given an opportunity to raise their grievance with the employer before the termination.
For a constructive dismissal claim to succeed, it must be proved that the employer committed a fundamental breach of contract that made it impossible for them to continue their employment. This breach must be a serious enough one that it could have led to the employee terminating their contract in accordance with its terms. It must be clear that the employee did in fact resign in response to the fundamental breach; the employee cannot simply have delayed their resignation and then claimed constructive dismissal.
How to Make a Claim for Constructive Dismissal
Retaliation is also a common cause of a constructive dismissal claim, and this could be the result of an employee raising concerns about working conditions or the behaviour of certain individuals at work. It must be clearly shown that the retaliatory actions are in direct response to the complaint or the employee’s actions, otherwise the case will not succeed.
An employer’s knowledge of intolerable working conditions can be crucial to a constructive dismissal claim, too. It is important to consider whether the individual’s employer had prior knowledge of the intolerable conditions, such as from a complaint they made or even a conversation they had with HR.
The statute of limitations for filing a constructive dismissal claim is three months from the date on which the employee resigned, although it is recommended that any such claims are filed as soon as possible to avoid any potential delays. However, the time limit to make a claim for unfair or discrimination-based dismissal is much longer and is often two years from when the act that caused the claim occurred. An experienced employment solicitor will be able to provide further information on what the time limits are in a particular situation.