What is Constructive Dismissal?
Constructive dismissal is the term used to describe a claim for unfair dismissal whereby an employee resigns in response to their employer committing a fundamental breach of the employee’s contract of employment. To pursue a claim for constructive dismissal in the Employment Tribunal an employee must resign.
Unlike ordinary unfair dismissal, the burden of proof is on the employee. There are 3 strands to the test for a claim of constructive dismissal which the employee must prove for the claim to succeed.
If an employee decides to resign, they should make the reason for resigning clear in their resignation letter. The employee should also consider whether they should give notice of their resignation.
1. The employer’s actions, which lead to the resignation, must amount to an actual or anticipated repudiatory breach of contract.
2. The employee must resign in response to that breach and not for another reason.
3. Lastly, and importantly, the employee must not wait too long from the breach to resign.
Employees usually need two years’ service to be able to bring claims for constructive dismissal and claims must be issued within 3 months less 1 day of the termination date.
Due to the difficulties in succeeding with constructive dismissal claims you may wish to take legal advice before resigning. If you require advice please get in touch with us on 01483 303636 or info@justemployment.com to see how we can help you.
