Cameron Miranda
Constructive dismissal is a complex area of UK employment law that gives employees the right to take legal action if they are forced to resign due to their employer's actions. Employees can make a constructive dismissal claim if they resign because they believe their employer has seriously breached their employment contract, such as through unilateral changes to their role or mistreatment. Constructive dismissal cases can be difficult to win, and employees are advised to first attempt to resolve issues with their employer and seek legal advice. Successful claims may result in compensation for financial losses and, in certain cases, damages for emotional distress.
| Characteristics | Values |
|---|---|
| Legal term | Constructive unfair dismissal |
| Reason | An employee feels they have no choice but to resign because of something their employer has done |
| Requirements | Sufficient evidence of a contract breach and intolerable working conditions |
| Payout | A few thousand to tens of thousands, based on lost wages, emotional distress, and legal fees |
| Alternative | Try to sort any issues out by speaking to your employer to solve the dispute |
| Other reasons | Being treated unfairly in a way that amounts to a breach of contract, discrimination, maternity and parental rights, exercising statutory rights |
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What You'll Learn
Constructive dismissal claims: when and how to claim
Constructive dismissal is a complex area of UK employment law. It occurs when an employee feels forced to resign because of their employer's actions, which are in serious breach of the employment contract. This could be due to a single incident or a series of issues.
To make a claim for constructive dismissal, you must prove that your employer seriously breached your contract and that you resigned in direct response to this. It is a good idea to report any issues before deciding to resign. Constructive dismissal claims can be difficult to win at an employment tribunal, so it is recommended to get legal advice first. You may be able to get legal advice from your trade union or through an insurance policy.
Before resigning, it is important to try and resolve the issue with your employer through their grievance procedure. If you have already tried to resolve things informally, you can raise a formal grievance. This is a formal complaint to your employer. Failure to follow the correct grievance procedure could result in a reduction of compensation if your claim is successful.
If you decide to resign, you should document all incidents and seek legal advice from an employment solicitor. You must file your claim within three months of resigning. Constructive dismissal payouts vary, depending on lost wages, emotional distress, and legal fees.
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Resolving issues with employers before claiming
Constructive dismissal is a complex area of UK employment law. It occurs when an employee is forced to leave their job against their will due to their employer's conduct, such as a serious breach of contract or intolerable working conditions. Before making a claim, it is important to try and resolve issues with the employer. Here are some steps to take:
Raise the Problem Informally
Firstly, attempt to resolve the issue informally by talking to your employer. This can be done by discussing the problem with your manager or, if you don't feel comfortable doing so, you can report it to their manager or the HR department. It is important to give your employer the chance to address the issue.
Make a Formal Complaint
If informal discussions do not resolve the issue, you can raise a grievance. This involves making a formal complaint to your employer, outlining the concerns and providing relevant details and evidence. It is important to follow the company's grievance procedure or seek advice if you are unsure of the process.
Seek Legal Advice
Before taking any further action, it is highly recommended to seek legal advice from an employment solicitor. They can assess the viability of a constructive dismissal claim and guide you on your specific situation.
Explore Alternative Options
Consider alternative options for resolving the dispute, such as mediation or negotiation. This could involve engaging a third party to facilitate discussions between you and your employer, aiming for a mutually agreeable solution.
Document Incidents and Evidence
Keep a record of any incidents, communications, and evidence related to your claim. This includes emails, messages, contracts, and any other relevant documents. This documentation will support your claim and help you recall specific details if needed.
Understand Your Rights and the Law
Educate yourself on your employment rights, the legal requirements for a constructive dismissal claim, and the potential implications. Understand the time limits for making a claim and be aware of any specific circumstances that may apply, such as the two-year employment requirement (with some exceptions).
By following these steps, you can attempt to resolve issues with your employer before proceeding with a constructive dismissal claim. It is important to carefully consider your options, seek appropriate advice, and gather relevant evidence to support your claim.
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Automatically unfair reasons for resignation
Constructive dismissal occurs when an employee feels forced to leave their job against their will due to their employer's conduct, which may involve a serious breach of contract. In the UK, there are several reasons for resignation that are automatically considered unfair under UK law. These include:
- Discrimination based on protected characteristics: If an employee is dismissed due to their race, sex, or another protected characteristic, this constitutes discrimination, and they can make a claim to an employment tribunal without needing to have worked for their employer for two years.
- Maternity and parental rights: Employees who experience mistreatment or detriment related to pregnancy, maternity leave, paternity leave, or adoption leave may have grounds for a constructive dismissal claim without the two-year requirement.
- Exercising statutory rights: Employees cannot be penalised for exercising their legal rights, such as requesting to be paid the minimum wage.
- Industrial action: Employees cannot be dismissed for participating in legal, official industrial action, such as a properly organised ballot or a dispute with their employer over terms and conditions. This protection lasts for 12 weeks, after which the employer may dismiss the employee if they have tried to settle the dispute.
- Unilateral changes to the employment contract: When employers make significant unilateral changes to an employee's role, such as increasing their workload, changing job responsibilities, or relocating the position without consultation, it can be a breach of contract and create grounds for a constructive dismissal claim.
It is important to note that employees should try to resolve issues with their employer before resigning and that constructive dismissal claims can be challenging to win at an employment tribunal. Employees should seek legal advice and follow the correct procedures when considering resignation due to unfair treatment.
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Compensation and damages for successful claims
Constructive dismissal claims can be difficult to win at an employment tribunal, but if an employee's claim is successful, they may be entitled to financial compensation. The most common remedy for a successful claim is financial compensation, but there are other options, such as reinstatement or re-engagement.
Reinstatement involves restoring the employee to their original position with the same terms and benefits. While rare in constructive dismissal cases, an employment tribunal may order reinstatement if it is deemed appropriate and if the employee wishes to return. Re-engagement, on the other hand, involves placing the employee in a similar role within the organisation, but it may be in a different position or location. This is also unusual in constructive dismissal cases, as the relationship between the employee and employer is often irreparably damaged.
If an employee is awarded compensation by an employment tribunal, it is typically made up of a basic award and a compensatory award. The basic award is calculated similarly to statutory redundancy pay and considers factors such as the employee's age, length of service, and weekly pay (capped at a statutory maximum). It compensates the employee for the job loss itself. The compensatory award addresses the financial losses suffered as a result of the constructive dismissal, including loss of earnings, benefits, and other perks associated with the position. It may also cover legal fees and, in some cases, additional damages for emotional distress.
The average payout for constructive dismissal in the UK can range from a few thousand to tens of thousands of pounds. The amount varies depending on factors such as salary, length of employment, and the specific damages experienced. There is no cap on the compensation that can be awarded in cases where there is also a claim for discrimination or whistleblowing. However, in most cases, the maximum amount of compensation for constructive dismissal is £118,223 or 52 weeks of gross salary, whichever is lower.
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Legal advice and representation
Constructive dismissal is a complex area of UK employment law. If you believe you have a case for constructive dismissal, it is important to seek legal advice and representation as soon as possible. Here are some steps and considerations to keep in mind:
- Understanding Constructive Dismissal: Constructive dismissal occurs when an employee feels forced to resign due to their employer's actions or conduct, which constitutes a serious breach of their employment contract. This could be a single incident or a series of breaches that cumulatively breach the implied term of trust and confidence.
- Seek Legal Advice Early: It is crucial to seek legal advice as early as possible if you think you might have a constructive dismissal claim. You can consult employment lawyers or solicitors who specialise in dismissal claims. They can advise on the viability of your case and guide you through the legal process.
- Trade Union Membership: If you are a member of a trade union, they may be able to provide legal advice and support. Trade union members who face constructive dismissal due to their union activities or whistleblowing may have additional grounds for a claim.
- Insurance Policies: Review your insurance policies, as some may cover the cost of legal advice and representation for employment issues.
- Documenting Incidents: Start documenting any incidents or evidence that supports your claim. This includes any breaches of contract, intolerable working conditions, or bullying or threatening behaviour.
- Employer's Grievance Procedure: Before resigning, consider resolving the issue through your employer's grievance procedure. This demonstrates that you attempted to address the issue internally and can impact the success of your claim. Failure to do so may result in a reduction of potential compensation.
- Strict Deadlines: Be mindful of strict deadlines for making employment tribunal claims. In the UK, you typically need to file within three months of resigning.
- Settlement Agreements: In some cases, a settlement agreement may be used to end the employment relationship on mutually agreed terms between the employer and employee.
- Compensation and Damages: If your claim is successful, you may receive compensation for financial losses, such as lost wages and benefits. In cases of automatically unfair reasons or discrimination, you may also be able to claim damages for emotional distress, known as an injury to feelings award.
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Frequently asked questions
Constructive dismissal is a UK employment law term that refers to when an employee is forced to leave their job because of their employer's actions, such as a serious breach of their employment contract. This is also known as 'constructive unfair dismissal'.
Constructive dismissal claims can take many forms. Some common scenarios include unilateral changes to an employee's role, such as increased workload, changes to job responsibilities, or relocation of the position without consultation. Other grounds include mistreatment related to maternity or parental leave, discrimination, or whistleblowing.
If you are considering claiming constructive dismissal, you should seek legal advice as soon as possible. You should also document incidents, raise a grievance, and consult an employment solicitor. It is recommended to resolve the issue with your employer through their grievance procedure before resigning, as this could impact your compensation.
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