Constructive Dismissal

First published on Thursday, Jun 04, 2020

Last updated on Friday, Jul 15, 2022

Every so often, an employee may feel as if they’re being unfairly treated. This can result in them leaving the company.

This is often to do with something the employer has done such as unfair work pressures, harassment, or breach of a contract.

If an employee is forced to resign because of something you did, you could face serious consequences. These could be employment tribunal claims or having to pay a hefty pay-out.

In this guide, we’ll explain what constructive dismissal is, the grounds for it, and how to avoid this type of dismissal.

What is Constructive Dismissal?

Constructive dismissal is where an employee is forced to leave their job because an employer has breached their contract.

Leaving a job position this way can be considered a serious contractual breach. But based on their grievance, constructive dismissal seems like the only option.

The grounds for constructive dismissal will depend on how unlawful the misconduct or behaviour was.

There are four elements to a constructive dismissal:

  1. The employee must resign: if dismissed, this is classed as an express dismissal.
  2. You breach the contract: this is focused on your conduct.
  3. The resignation must be in response to the breach: if the breach is not an effective reason for resignation, the claim will fail.
  4. The resignation must be within a reasonable time: a tribunal may decide the employee waited too long after resignation.

The ill-treatment can directly or indirectly affect the employee. They could feel unsafe or uncomfortable to continue working–forcing them to resign.

There is no set time limit for when an employee resigns, it will depend on the facts.

If an employment tribunal finds you guilty, you may face a hefty pay-out.

Difference Between Constructive and Unfair Dismissal

These two types of dismissal processes are often confused.

Employees will raise a constructive dismissal claim if they think they have no choice but to resign. They must show the treatment was so bad, they couldn’t continue working.

Unfair dismissal claims happen when the employer terminates a job contract. They need to prove their dismissal was reasonable, or else it’s considered unfair.

Examples of Constructive Dismissal

Some common signs for constructive dismissal include:

  • Demoting your employee without warning them.
  • Forcing your employee to accept unreasonable changes from what their role asks. For example, you force an employee that works day shifts to work night shifts.
  • Not paying your employee the agreed salary amount.
  • Allowing other employees to harass, victimise, or bully them.
  • Forcing an employee to work from a new site without an agreement.

Constructive Dismissal Process

Before a constructive dismissal is raised, all other steps should be followed first.

These include:

  • Reporting complaints through the correct procedures.
  • Using external resolutions methods, like mediation.
  • Seeking legal advice.

In the end, your employee may still decide to resign this way.

How to Avoid Constructive Dismissals

Dealing with constructive dismissals can be difficult. The best way to deal with them stops them from happening in the first place.

This will not only save you costs and time, but it will allow you to avoid a claim damaging your business’ reputation.

To avoid constructive dismissals, you should:

  • Develop a company culture that respects each other.
  • Invest in skilled manager training.
  • Help managers with poor performance, conflict, and health & safety concerns.
  • Support employees if they have any problems or concerns.
  • Have clear policies in place to avoid uncertainty.

Get Advice on Constructive Dismissals with BrightHR

Constructive dismissals are serious and must be dealt with through the correct process. Employees shouldn’t be made to feel as if they need to resign or feel uncomfortable at work.

To avoid dismissals and tribunal claims, you need to support your employees during any problems or concerns at work.

BrightHR offer expert advice on managing constructive dismissals. Our BrightAdvice employment law helpline can help you with any laws on dismissals.

Book in a free demo today or give us a call on 0800 783 2806

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