This article explains exactly what constructive dismissal is and sets out the many pitfalls which tend to thwart employees who want to make a claim for constructive dismissal. You might want to get a rough idea of the value of your case by filling in the Settlement Agreement Calculator.
Top 3 TIPS
- Consider raising a grievance
- Keep detailed notes and/or recordings
- Make sure you time your resignation right
2 year qualifying period
In order to make a claim for constructive unfair dismissal in the employment tribunal, you need to have worked for your employer for at least 2 years. If you have less than 2 years under your belt, then unfortunately it means that it is very easy for your employer to dismiss you or constructively dismiss you (even if it feels blatantly unfair) and receive no consequences.
In some cases there is no requirement for a two year qualifying period – for example if the circumstances relate to health and safety breaches, whistleblowing or trade union activities, or you have been the victim of discrimination (for example sex, disability, race, pregnancy and other types). There may be other ways you can claim in contract law if your contract has been breached, for example, the commission structure was changed without consultation.
Constructive dismissal compensation
Compensation for successful constructive dismissal claims is worked out in exactly the same way as compensation for unfair dismissal claims. It is essentially the amount of money you lost because you were out of work after you had to leave. There is now a cap of one year’s salary or £75,000 pounds, whichever is greater. You will also need to keep detailed records of your efforts to find a job in the meantime.
What is constructive dismissal
Constructive dismissal is a certain type of unfair dismissal, the difference being that in constructive dismissal the employee resigns, or leaves voluntarily, rather than being formally dismissed by their employer. The full name for constructive dismissal is actually constructive unfair dismissal.
It can be very difficult to prove because employment tribunals believe that it is only in extreme circumstances that someone feels forced to leave employment. The classic extreme example is not being paid your wages, or being physically assaulted. There are so many permutations but they all involved having your working life made so difficult that you feel no option but to leave.
Evidence needed for constructive dismissal claims
Unfortunately only around 5% of claims of constructive dismissal succeed in the employment tribunal. The main reason is that tribunals decide that there is insufficient evidence that the employer’s conduct was so bad that leaving was the only option (instead of, for example, submitting a grievance). So, if your employer puts you on a performance improvement plan, for example, this is unlikely to be a justification to resign. A Tribunal would expect you to stick it out!
Another big killer of constructive dismissal claims is whereby the employment tribunal deems the employee to have affirmed or ‘accepted’ the employer’s misconduct. In practice this means that you left it too late to resign, and by so doing you tacitly accepted the mistreatment. So it may be that swift action on your part is required, but equally Tribunals can deem a resignation as premature. So don’t be rash. There is more information below on how to time your resignation.
Are you being ‘managed out’?
As you probably know, often employers try to ‘manage out’ employees to avoid having to pay them off with a settlement agreement. Manager’s are often told to put an employee on performance review or to discipline them over a trivial matter. It is surprising how even big corporations employ these kinds of underhand tactics to avoid their responsibilities towards their employees. The difficulty however, is proving it.
Timing your resignation
Exactly when to resign is a difficult question, and it is not a decision to take lightly. As set out above, if you leave it too late to resign then you can be taken to have accepted the conduct of your employer. Sometimes, the best tactic is to stretch out your resignation and stay employed. This way you suffer no financial loss, you can be a constant thorn in your employer’s side, and they will pay you more in a settlement agreement just to get you out of their hair. Read more in our article about negotiating settlement agreements.
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