Constructive Unfair Dismissal Claims

When an employee resigns because their employer has behaved unreasonably or because of a situation at work which they cannot tolerate any longer, they may have a claim in the Employment Tribunal for constructive unfair dismissal.

Constructive Unfair Dismissal

Legal requirements

Only employees can bring a claim for constructive unfair dismissal and generally, you will need two years’ service with your employer.

What does the employee have to prove?

In order to bring a successful claim for unfair dismissal, you must be able to demonstrate three things:

1. That your employer breached the contract of employment;
2. That the breach is very serious (‘repudiatory’) in nature;
3. That the employee resigned in response to that breach.

What kind of behaviour constitutes a breach of contract?

This could be a breach of a specific written clause in the employment contract or a breach of a term which is implied into the contract by law; even if it isn’t specifically written down. The breach might have already happened or the employee might think that is about to happen.

A breach of contract might include:

1. Changing an employee’s salary, bonus or commission without consent;
2. Significantly changing the employee’s contractual duties, where the employer did not have the right to do so;
3. Discriminating against an employee;
4. Failing to deal with a grievance or mishandling the grievance process;
5. Poor handling of disciplinary matters;
6. Giving an employee an excessive workload;
7. Use of bad language and creating a hostile working environment;
8. Destroying trust and confidence.

What is a breach of trust and confidence?

The law implies a term in to all contracts of employment that both the employer and employee will treat each other with trust and confidence. This can mean mutual respect, fairness and openness.

This can be breached in a one off incident or more usually where an employer has committed multiple breaches of contract; or has embarked upon a course of conduct which, when viewed in the round, has irretrievably damaged the employment relationship.

What do I have to do if I believe my employer is in repudiatory breach of contract?

An employer’s repudiatory breach does not bring the contract to an end automatically. The employee must accept the breach of contract by resigning in response to it.

How do I know when to resign?

This is a question only the employee will be able to answer; however, if the behaviour is sufficiently serious, the employee must act swiftly.

You may want to consider whether it is appropriate for you to raise an internal grievance; however, the longer time lapses between the alleged breach and the employee’s resignation, the harder it is to demonstrate that the resignation was in response to the breach.

Should I serve my notice?

It is commonplace that where an employee is claiming that the employment relationship has irretrievably broken down, they resign without notice. However, it is important to note that the employee may resign with or without notice to be successful in a claim for constructive unfair dismissal; what matters is that they should be entitled to terminate the contract without notice.

How Nelsons Can Help

For further information contact our employment law specialists on 0800 024 1976 or via our online form to discuss your issue in more detail.