When is Constructive Dismissal Justified?

Constructive Dismissal Justified

For an employee to be constructively dismissed, their employer must create intolerable working conditions that make it impossible for them to perform their job effectively. Often, this can be the result of multiple incidents and a build up of frustration over time. For example, if an employer reduces a worker’s salary significantly without explanation and this makes their work environment intolerable, this could constitute a breach of the contract of employment. In addition, bullying or harassment from a manager or colleague can also be a form of constructive dismissal. For a claim to succeed, the worker must show that they have suffered a fundamental breach of an express or implied contractual term.

Generally, it is up to the worker to notify their employer of the intolerable conditions and seek resolution before resigning. This can be done by making a formal complaint through the proper channels or by seeking help from a supervisor or other senior member of the staff. In addition, employees have a legal right to report workplace issues, such as sexual harassment, worker safety violations, or discrimination and this may protect them from being retaliated against by their employers.

In some cases, the behaviour that is causing an employee to feel forced to resign may be a violation of whistleblower laws or it may also be a breach of contract. It is important for an employee to document all instances of such conduct and seek the advice of a skilled employment lawyer before taking any action.

When is Constructive Dismissal Justified?

There are a number of short and long-term consequences to being constructively dismissed. Aside from the financial difficulties caused by not having a regular income, workers may face a difficult time finding another job. Some employers may be hesitant to hire a worker who has been forced out of their previous job, and this can impact the employee’s source of pride and confidence. Furthermore, some workers may feel embarrassed to reveal their reason for leaving a job in job applications, preventing them from being considered for new positions.

It is also vital to understand that an employee cannot file a constructive dismissal claim whilst they are still employed by their employer, as this would be viewed as affirming their contract and confirming the terms as they were when they first started their employment. However, an employee can take a claim to an employment tribunal once they have resigned from their contract and this is where a skilled employment law solicitor can provide advice on the merits of a case.

It is essential that an employee documents all instances of an employer’s misconduct and keeps records of attempts to resolve the issue before resigning. This can include evidence of communications and efforts to raise concerns, such as emails or voicemails. In addition, it is important for a worker to act quickly and not delay their resignation in order to preserve the validity of their claim. If they delay in this way, it can be argued that their resignation is no longer in response to the breach and their claim may fail.