Constructive dismissal: what does it mean?

Constructive dismissal is a complex issue and this comes into sharp focus when you try to negotiate a settlement agreement exit package. Your employer may play hard-ball, so you need to know the strength of your case and how much you should get.

Full transcript:

Right, constructive dismissal that's a huge topic and at the moment....

and that's basically where you're being forced out of your job

or you're being treated so badly that you've got no choice but to resign.

It's, it's a type of unfair dismissal the full-name is constructive unfair dismissal.

The difference being that unfair dismissal is where you actually are dismissed or fired.

With constructive dismissal it's a bit harder for you to win that kind of case.

When I say win I mean do well in negotiation,

because you don't really want to go to court or tribunal and win one of these cases,

because it could take you you know a year or two of your life and a lot of stress.

So, when I say win I mean get out of there,

with your head held high, with a decent exit package or settlement agreement deal.

So, in order to do that you need to understand a few of the legalities.

Now, constructive dismissal firstly, you've got to have two years service.

So, if you haven't been somewhere for two years then they allowed to dismiss you

or you know effectively force you to leave um, for any reason at all really,

as long as it's not discriminatory,

so relating to things like race, religion and gender and other protected characteristics.

But it could be something arbitrary like, oh we don't like you, we changed our mind

or we don't need you anymore.

And after you've had two years, then you've got to be given the chance to improve

and you've got to be given um, you know sufficient warning and.... and told the reason for your actual dismissal, or being forced out.

So, there's so many different variations of constructive dismissal.

You know the classics include things like mergers and acquisitions,

perhaps all the board have changed because the company's merged

or roll erosion, someone's come in starts doing your job

and or you know bullying and harassment by an overbearing manager.

So, lots of different permutations and there's a few similarities within all of them.

Often it'll be yourself as the employee who makes the first move in this scenario

because your employer is trying from their point of view they're hoping to manage you out,

so, they don't have to pay you off.

Just perhaps make your life hell, whether that's deliberately or perhaps even accidentally.

So, from your point of view you need to flag this behavior up to them,

perhaps setting out without prejudice letter, setting out all the ways you've been mistreated.

You could use a grievance letter, a formal grievance but just be aware that

although this triggers a formal process then it also then makes it a bit more difficult for your employer to negotiate with you

because they might feel the need to go through this grievance process rather than just

going through without prejudice negotiation which is just talking about numbers.

And remember here the.... the thing you both have in common is that you both want the employment relationship to end.

So, you want to leave, they want you to leave so it's really a win-win for both sides

and then it's just about finding out the..... the exact point where you can meet

which is you know normally that set amount of money.

There are the terms in there like references, confidentiality clause and so on, tax indemnity clauses

but ultimately it's about the amount of money that you're going to be willing to accept and they're going to be willing to pay.

So, have a go on our calculator on the website here, read some of the articles about how much you should get.

And you know if you're being constructively dismissed, think about whether you do want to just go quietly and just leave,

um, I'm not saying that's a tail between your legs at all because for a lot of people it's very stressful,

um but you do have another option and it does help you if you actually do have an experienced lawyer as well who has done it before.

But your other option is to try and get yourself a decent deal to tide you over to your next job.

So, you don't just have to leave with nothing basically. Thanks very much