Constructive dismissal is a complicated subject, but it is a situation that often enables you, as the employee, to negotiate a decent settlement agreement. This article sets out some of the many pitfalls which tend to thwart employees who want to negotiate a fair exit package deal.
Related guides and articles for further reading:
Example letters for constructive dismissal cases:
What is constructive dismissal?
The term is actually short for constructive unfair dismissal and is a certain type of unfair dismissal, the difference being that in constructive dismissal the employee feels forced to resign, or leaves voluntarily, rather than actually being formally dismissed by their employer.
It can be very difficult to prove in court 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 of what could constitute constructive dismissal but they all involve having your working life made so difficult that you feel no option but to leave.
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Evidence needed for constructive dismissal claims
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 to show 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 in tribunals is when the judge 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.
Do you have the 2 year qualifying period?
As with normal unfair dismissal, and in order to make a claim for constructive unfair dismissal, in the employment tribunal, you need to have worked continuously 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 face no legal consequences.
In some cases there is no requirement for a two year qualifying period. For example, if the circumstances relate to whistleblowing (if you have revealed malpractice and they have victimised you for that), discrimination (for example sex, disability, race, pregnancy and other types) and breach of contract (whereby your contract has been breached, for example commission structure changed).
The employee normally makes the first move in a constructive dismissal claim
In a constructive dismissal scenario, it is normally the employee who needs to make the first move. Your employer usually won’t be aware of the situation, or, if they are aware, they probably aren’t going to have a protected conversation with you; rather, they will try and keep the situation calm and hope the passage of time means that any claim you may have will fall away.
Employers often try to ‘manage out’ employees to avoid having to pay them off with a settlement agreement. Managers are 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.
How to start a claim for constructive dismissal
You will have to put together a without prejudice letter. In that letter you will have to set out the fundamental breaches of contract that you consider your employer to have committed, be it one big breach – such as the failure to pay a contractually due bonus – or lots of separate breaches that together make up a breach of trust and confidence.
Remember, you are trying to prove your employer has breached your contract to the extent that they have effectively dismissed you, so you need to show how they have done that by using the wording in your letter and any evidence that you have collected.
Negotiating in a constructive dismissal case
Technically, a case for constructive dismissal does not crystallise until you have resigned: it is only then that you actually have the legal right to sue for unfair dismissal. In the same vein, it is only once you have been dismissed that you have the right to claim unfair dismissal.
Therefore, in your without prejudice letter, you will be explaining to your employer that you have ‘a case of constructive dismissal should you choose to act upon it’. What you are effectively saying is ‘If you do not resolve this to my satisfaction, then I will resign and sue you’.
Because of this delicate balance, negotiating on a constructive dismissal case can be a bit of a roller coaster ride: if your employer ‘calls your bluff’ and refuses to negotiate, then you will be put in the position of having to resign or to return to work. It is essential, therefore, that you time your letter correctly to coincide with the worst breach of contract, or at the end of a long chain of breaches. There is no point in firing early in this particular duel. Remember, you also cannot leave it too long after the last breach of contract to write to your employer, or to resign; so timing really is important here.
Timing your action
Our advice differs depending upon the type of constructive dismissal case. In a case where your employer has committed a sole and fundamental breach of your contract – for example, they have failed to pay you according to your terms of contract – then the time to act is as soon as possible as there is no merit in waiting. You have your fundamental breach and now is the time to commence negotiations.
Whereas in the case of lots of smaller-type breaches which when taken together add up to a fundamental breach of trust and confidence, for example, you have to use your judgement a little more. There is no point in starting to negotiate after the first minor breach as you don’t have a potential claim, nor do you have sufficient facts to negotiate with; yet when is the correct time?
Our view is that once there is a pattern in the minor breaches that, when taken together, appear to be serious and that an outside observer would categorise as extremely bad behaviour by an employer, that is the time to start negotiating. If you think your employer will commit more breaches, and therefore strengthen your case, then you can wait for this to happen if you like; however, we would recommend waiting no more than two months from the latest incident before starting negotiations. After three months, there is a real risk that – if you haven’t resigned – a judge could decide that you have affirmed (ie accepted) the breach and you would lose any case you brought. Which means, of course, that any negotiating position you have would be weakened.
How much should you get?
How much could you get in compensation for a constructive dismissal claim depends upon the exact circumstances, but compensation for successful constructive dismissal claims is worked out in 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 your job. There is now a cap of one year’s salary, or £80,000 – whichever is greater. You will need to provide detailed records of your efforts to find a job since leaving your role. Read of our article on how much you should get to get further insight into this area and try our calculator.