Constructive Dismissal

If your employer does not dismiss you but you are forced to resign because of something your employer has done, or is doing, which is in breach of your contract and serious enough that you can consider the contract at an end, you may be able to argue that this is a constructive dismissal.

If a significant change to your contract is being required or imposed, for example, if you were contracted to work from 9am to 5pm and your employer then told you had to work nights, or, you used to be a sales rep for the Midlands and now you are being asked to cover the North West region, and your contract does not allow for this, then you may be able to resign and claim that you had been forced to do so. In other words your employer’s breach of contract left you with no choice except to resign. In legal terms this is called a constructive dismissal.

For you to be able to say that the employer’s actions left you no choice but to resign, it is not enough to show that your employer behaved unreasonably – you have to show that, objectively, your employer’s conduct has destroyed or seriously damaged your employment relationship and so amounted to a breach of contract.

You must also show that it was the employer’s actions which caused you to resign, or was one of the main causal factors (not some other reason such as the fact that you have been offered another job).

If a tribunal is satisfied that you had in effect been forced to resign by your employer’s actions, it will then go on to consider whether the dismissal was unfair.

You may also have been constructively dismissed if your employer does something so wrong that you can consider the contract over, for example if your employer hits you, or uses abusive language that is out of place at your work environment. Employment contracts have implied terms, such as a duty of trust and confidence and a duty not to discriminate, so there does not have to be an explicit term in the contract forbidding the behaviour.

Grounds for constructive dismissal may include discrimination, a breakdown of trust and confidence, failure to address grievances or excessive workloads.   You may bring a constructive dismissal claim as a result of a one-off incident, or a repeated course of conduct by your employer that amounts to a breach to such an extent that you feel it is no longer possible to continue in your current employment.

Where possible, you should always seek advice before resigning, as you may be able to resign with or without notice and it can be difficult to prove you have been constructively dismissed.  However, it is important that you do not delay too long, or this may mean that you have waived the breach of contract.  When you resign, make it clear (preferably in writing) that you consider the contract to have been terminated by the employer, otherwise you may not be able to claim constructive dismissal.

If you have been constructively dismissed, then you may be able to make a claim for wrongful dismissal (unpaid notice pay) and unfair dismissal.

This guidance applies in England, Wales, Scotland and Northern Ireland. If you live in another part of the UK, the law may differ. Please call our helpline for more details

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