Advice to an Employee on Constructive Dismissal

Getting a job these days can be challenging for many, but getting sacked or being forced to resign is often traumatic. Many employees go through this period alone without any idea what to do. 

For starters, so many people feel they have claims to constructive dismissal, which is why there is an employment tribunal to settle matters on constructive dismissal claims. 

Employers seek help to protect themselves from constructive dismissal; employees should ensure they get adequate support where necessary. 

However, not many employees know the right time to seek a constructive dismissal claim; some do not even know anything about it.

Here is a straightforward guide on constructive dismissal from an employee’s angle. While this is for employees who feel they have had an unfair dismissal, those still working would find this quite helpful. You do not have to resign before you can seek advice on unfair dismissal, as you’ll find inside this piece.

What is Constructive Dismissal?

Constructive dismissal in employment law occurs when an employer changes the job description and working conditions to force an employee to resign. When the employee resigns due to these factors, the employee can claim constructive dismissal. 

Forcing employees to resign through discrimination, a hostile work environment, and deviation from the job description is common worldwide. The frequency it occurs is why employment tribunals are there to hear those claims. 

If there is a serious breach of contract from the employer which forces the employee to resign, it is considered a dismissal. The keyword here is serious; it is the tribunal’s job to determine if the claim has merit and how much should be paid.

When can an Employee Claim Constructive Dismissal?

The employment tribunal can only grant a claim when the employee can claim a serious breach by the employer. 

Unfortunately, the term “serious” is where many employees get it wrong. So, when can an employee lay claim to a severe breach leading to constructive dismissal?

First, the employee must have seriously breached the employment contract, including a breach of an express contractual term or an implied term based on mutual trust. 

Secondly, the employee must have resigned due to this breach. When these two things happen, the employee can claim constructive dismissal. 

The employee will have to prove that the employer breached the terms of the contract. They can do this by citing a single grave incident or a string of breaches spanning several months. The aim here is to show the severity of the violation.

The employee will also prove that that breach caused their resignation, as this is the only way to have it as a dismissal and not a resignation. 

The employee must have resigned immediately after the last incident to prove this. Failure to do so makes it hard to prove the breach caused the resignation.

When is an Employee Qualified to Claim Constructive Dismissal?

Several things must be in place before anybody can claim constructive dismissal, even if they can prove a breach.

• Must Be an Employee And Not a Worker

An employee must be working under an employment contract. This contract may be verbal or in writing, preferably in writing. Here the employer is expected to provide work, and the employee is expected to do the work. Typically, the employer has a lot of control over how the employee does the work.

• Must-Have Worked for Not Less Than Two Years

Before an employee can claim unfair dismissal, they must have worked continuously for at least two years. However, certain exceptions exist to this rule. 

For example, suppose the reasons for unfair discharge can be classified as automatically unfair. In that case, the two years obligation will no longer stand.

When Do You Need to Seek Constructive Dismissal Advice?

There are tons of unfair discharge claims yearly, and the employment tribunals reject many. However, seeking advice from experienced constructive dismissal solicitors is best to ensure your claim gets approved. The best time to seek unfair dismissal advice is immediately after the incident and before resigning.

The employee must lodge a complaint first and give the employer a chance to remedy the situation. Where possible, lodge an informal and then a formal complaint where the first complaint is not resolved. Reporting the grievances to the employer will prevent the tribunal from slashing your claims due to your inability to provide the employer room to fix the problem.

Seeking professional help as soon as possible after the incident will help the solicitors weigh your claims and see if you have a solid case before resigning. 

It is best as it saves you from resigning from mistaken beliefs of unfair discharge. In addition, the solicitors will guide the process of seeking redress in the employment tribunal.

Summary

Leaving your job can be difficult, even more so when you’re forced to resign due to breaches by the employer. Luckily, there are laws in place to protect employees from toxic working environments if they act fast.