What is it?
The general rule is that to claim Unfair Dismissal, you need to be Dismissed, or sacked. But in some situations, the employee can resign and claim that it was the actions of the employer that gave them no choice but to leave – they were ‘constructively dismissed.’
When does it happen?
The courts have set the bar for constructive dismissal quite high. The leading case, which dates from 1978, says the employer has to be “guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.”
What if I don’t have a contract?
Employment law says everyone employed has a contract, even if they are not given one in writing. The Employment Tribunals recognise fundamental points in a contractual relationship even if they have never been written down – such as the right to be paid for work done. So if the employer does not pay staff, then they are entitled to stop work, and claim constructive dismissal.
What if I am still being paid but being given different duties?
Then it depends. Some contracts may allow an employer to do this, although there is a general duty on the employer to act ‘reasonably’ in exercising this right. In practice this could mean allowing time for a transition to new duties, giving training, and consulting with staff, for example by meeting with them before taking any decisions.
Can being relocated to a different site be constrictive dismissal?
Again the contract would have to specifically allow for this, and even then, the employer would have to act reasonably. Distance would also be a factor – it would not be reasonable to ask long-serving staff to move down to England to work. However, it could be if the existing workplace was going to close down completely.
What if I am treated badly in work?
In the worst case, assault by a manager would certainly be a conduct that would allow staff to resign and claim constructive dismissal. Treatment short of this could be – but it would have to go beyond a mere reprimand (even if this was for something that was not your fault). The law allows managers to manage (even not very well). Normally there is another path open to staff, of submitting a Grievance, and the Tribunal would expect this to have been used before submitting a resignation.
What if my Grievance is ignored?
There have been successful ET claims based on the employer taking so long to investigate matters, or doing so in such an inept fashion, that the employee was able to resign and claim constructive dismissal. But a lot of would depend on the seriousness of the situation – it could not be not actioning a holiday request, for example, but it might be failure to investigate bullying.
The treatment in my case goes back years
This is more difficult. The Tribunal will recognise that there can be a cumulative effect which corrodes the employment relationship – but they won’t entertain a claim that relies on events from more than a few months ago. The law expects the employee ‘put up or shut up’ – either resign and bring a claim, or be deemed to have accepted the situation as one they can tolerate.
What if my employer continues treating me this way
Then there can come a point where something the employer does is seen as the ‘last straw’ which leads to the resignation. This last straw has to be the final act and doesn’t need to be particularly harmful - the earlier acts can also be referred to in the claim as also being part of the reason for quitting.
How long after the last straw do I have to make up my mind?
No more than a few weeks. In a case from 2013, the Tribunal recognised the right of an employee to resign six weeks later. But in this case the employee was off sick, had been in the job for several years, and was not sure if he could get another job. In cases where someone is still going to work, less time would be allowed before the employer could argue that they had accepted the situation.
Can anyone claim constructive dismissal?
If depend on what the employer has done. Usually, two years’ continuous service is required before a claim will be accepted by the ET. But there are situations in cases where there has been ‘whistleblowing’ (also known as making Protected Disclosures) and where there has been discrimination where two years’ service may not be required.
What can the Tribunal award?
A year’s wages is the maximum amount, although there can be other sums claimed depending on the circumstances. If there is whistleblowing or discrimination is part of the claim, greater sums can also be awarded.
Are there time limits on making a claim?
Yes – this can only be done if ACAS have been notified no later than three months minus one day from last day of employment. This might be the date of resignation but might be later. For example, if you left on 11th December, you would have to do so before 10th March. The ET is strict about these timescales and will throw out claims that have not followed this in time.