Constructive dismissal is defined in the Employment Rights Act 1996 as where:
‘The employee terminates the contract under which he is employed (with or without notice), in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.’
An employee alleging constructive dismissal must therefore show that the employer’s behaviour has become so intolerable and difficult that continuing the employment was impossible and the employee has no choice but to resign. As such, the resignation was not truly voluntary.
Examples of behaviour by an employer which may constitute constructive dismissal will include:
- Not supporting the employee in difficult work situations;
- Harassing or humiliating the employee, particularly in front of other less senior staff;
- Victimising or targeting particular members of staff;
- Changing the employee’s job content or terms without consultation;
- Making a significant change in the employee’s job location at short notice;
- Falsely accusing an employee of misconduct such as theft or of being incapable of carrying out their job;
- Excessive demotion or disciplining of employees;
- If you are a woman on maternity leave, and your employer refuses to allow you to return to work after maternity leave;
- You have been laid off or put on short time working when your contract does not allow for this;
- You receive an ambiguous dismissal from your employer and it is not clear if the employer is dismissing you or not.
An employee can resign over one serious incident or due to the build-up of a number of incidents. However, the employee must resign soon after the incident in order to be able to rely upon it. Generally, the actions of the employer must be a serious breach of contract.
An employee who has been constructively dismissed only proves that they were dismissed; it does not automatically prove that the dismissal was unfair. The employee then has to go on and prove that the dismissal was also unfair. However, often this will not prove a problem.
Some actions will NOT be considered as constructive dismissal:
- you resign without any pressure from your employer or leave by mutual agreement;
- you are suspended on full pay;
- your employer withdraws a job offer before you start work;
- circumstances change and you can no longer continue to work for your employer. This is known as frustration of contract;
- you are laid off or put on short-time working and your contract allows for this, and then you claim redundancy. You are then actually resigning;
- you receive an ambiguous dismissal from your employer but it is not clear if the employer is dismissing you or not.