Constructive Dismissal | How to claim
This is where the employee leaves their job due to the employer's behaviour. For example, the employer has made the employee's life very difficult and the employee feels that they cannot remain in their job.
When this happens the employee's resignation is treated as an actual dismissal by the employer, so the employee can claim Unfair Dismissal. The employer's actions must have amounted to a fundamental breach of contract between the employer and the employee.
Examples of Constructive Dismissal can include:
1. Not supporting managers in difficult work situations.
2. Harassing or humiliating staff, particularly in front of other less senior staff.
3. Victimising or targeting particular members of staff.
4. Changing the employee's job content or terms without consultation.
5. Making a significant change in the employee's job location at short notice.
6. Falsely accusing an employee of misconduct such as theft or of being incapable of carrying out their job.
7. Excessive demotion or disciplining of employees.
An employee can resign over one serious incident or due to the build up of a number of less serious incidents. However, the employee must resign soon after the incident(s) in order to be able to rely upon it. Generally the actions of the employer must be a serious breach of contract.
Constructive Dismissal & Unfair Dismissal
An employee being constructively dismissed only proves that they were dismissed, it does not automatically prove that the dismissal was unfair. The employee has to go on and prove that the dismissal was also unfair.
This can be a tricky area, an employee can resign and claim Constructive Dismissal due to the employer's behaviour, but the employer could turn around and say that he (the employer) breached the employment contract, but that it was done, for example, because of the reorganisation of the business. The chances are that the employer will be given the benefit of the doubt. The reason for this is that Employment Tribunals do not like to interfere with business management.
If on the other hand the employee resigned because he or she thought that they had been treated too harshly over a disciplinary matter, it would be easier for the Tribunal to look for and find unfairness, particularly if the correct disciplinary procedures were not followed.
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