How to Prove Constructive Dismissal?

December 14, 2018

What is Constructive Dismissal?

When an employer commits a serious breach of contract leading to the employee resigning in response to the action, the employee has a right to treat himself as having been dismissed. The conduct of the employer in such a case is referred to as “repudiatory breach”.

It is important to note that merely showing an unreasonable behaviour on the employer’s behalf is not enough, there has to be a breach of contractual terms. You must also remember that while resigning, you regard yourself as having been “constructively dismissed”.

 More often than not, it is not just one incident which leads to a breach of contract by an employer, but a series of continuous incidents which may amount to a breach.

It is also important that you remain careful of not neglecting any such breach by your employer. This can often happen in case you are absent for a long term sickness and your steps to file a grievance get delayed. This is because a waiver can signal an acceptance of breach.

Examples of claims that can be made for Constructive Dismissal

  • A significant and unexplained reduction in your salary or a threat of reduction in your salary
  • Demotion without being given a fair reason
  • Baseless allegation of poor performance
  • Reporting you for unwarranted findings and not giving you an opportunity to respond
  • Unreasonable disciplinary proceedings
  • Harassment or bullying
  • Unaddressed stress at work
  • Not making reasonable adjustments in case you have a disability
  • Forcing you to work in breach of safety and health laws

In order to file a claim, you have to be employed by the employer for a minimum of 23 months and 3 weeks. You should not be serving a notice period during this tenure that expires before two years of your service.

If you can prove that your employer has acted in ways that make your position untenable and hampers your employment relationship, your claim has a fair chance of succeeding. You must remember though, that it is your responsibility to prove that your employer has breached the contract. This is where it differs from an unfair dismissal claim, where your employer is supposed to prove that he has followed all the steps for a fair dismissal.

It is always suggested to take early professional advice in order to avoid the idea that by resigning you have a sound claim, when you may not.

What is the time period to make an employment tribunal claim?

Ideally you should begin the process of making a claim for constructive dismissal within a period of 3 months from the date of leaving the job. This is often the last date that you were paid for. However, the claim has to be first lodged with ACAS as a first step in early conciliation scheme, only then the case can be accepted by a tribunal.

It is also suggested that before you proceed towards an employment tribunal claim office, you try to write a formal grievance to your employer stating the situation. This may give an opportunity to your employer to correct actions. If a grievance does not help, you can contact an employment solicitor and take advice.