CONSTRUCTIVE DISMISSAL

Behaviour

Constructive dismissal is a term specific to employment law which occurs when an employer or in some circumstances, other employees, have behaved in such as way as to make life so miserable for an employee that they feel that they have no other alternative than to hand in their notice and terminate their job. Every employee is entitled to work in a positive environment and should not be placed in a position where they need to resign to escape unsatisfactory or illegal working conditions. In these cases an employee does not voluntarily resign and has effectively been dismissed and may be entitled to claim compensation in an Employment Tribunal. This can occur where there are illegal working conditions or unfair treatment or an adverse change of job or working conditions which affects the employees capacity and ability to do the job.

In all cases before anyone can maintain a claim in an Employment Tribunal for constructive dismissal they must put in a grievance and follow the minimum statutory procedures.

Justification of resignation

If an application to the Employment Tribunal is to succeed it is necessary for the employee to show that there has been a fundamental breach of the contract of employment which is not necessarily laid out in writing which resulted in the termination. Just one very serious incident which includes racial or sexual harassment or abuse may be sufficient to prove a claim however it is necessary in this situation for the employee to resign very soon after the incident has occurred. Other situations which may justify resignation involve long and repeated abuse or bad behaviour. If the abuse or bad behaviour emanates from a fellow employee then it is usually necessary to report it to the employer and action can then only be taken in the Employment Tribunal if the employer fails to deal with the situation satisfactorily and promptly.

Employment Tribunal application grounds

Action can be taken for compensation in an Employment Tribunal if the employer has taken or failed to resolve any of the following actions :-

• unilateral amendments to the contract of employment
• reduction in pay or changes to the salary structure
• changes in employment benefits
• changes to working conditions or environment
• loss or detrimental change of status
• abusive behaviour
• aggressive behaviour
• threatening behaviour
• bullying
• humiliation
• racial harassment
• sexual harassment
• race discrimination
• sex discrimination
• false, malicious or unsupported accusations
• unreasonable or excessive discipline
• victimisation

Take legal advice prior to resignation

Proving constructive dismissal is not always easy and prior to resigning, except in very serious circumstances, it is advisable to take urgent legal advice before taking any action. Anyone who is in this situation is advised to keep a written diary of any incidents of abuse which may fall into any of the categories outlined above as that diary may be useful contemporaneous evidence of the situation resulting in any subsequent resignation and could be referred to by an Employment Tribunal investigating the issues at a later date. Records of relevant events make legal action easier and quicker by helping prove the unacceptable conditions which forced the resignation.

Compensation and limitation

Losses which can be claimed in an Employment Tribunal include post-resignation salary, bonuses and commissions, leave and holiday pay. There are time limits and a claim must be lodged at the Employment Tribunal within 3 months from the date of the resignation. This time limit may be extended by a further three month period when a grievance is raised but expert legal advice should always be obtained in relation to time limits and their extensions.