Constructive Dismissal

Where an employer commits a fundamental breach of an employee's contract of employment that employee is entitled to resign and treat himself/herself as having being dismissed by the employer - this is called constructive dismissal.

Unless the employer has a fair reason for breaching the contract of employment the dismissal will be deemed unfair by an Employment Tribunal. In the vast majority of cases most constructive dismissals are deemed unfair.

The term breached does not have to be an actual written term of the contract. Constructive dismissal can arise where there is no written contract of employment or where the written terms do not cover the alleged breach by the employer. Common breaches of written terms that can constitute a constructive dismissal are: a reduction in pay, a demotion/change in job role and a change in working hours.

The employer can also breach implied terms of the contract of employment. Implied terms by definition are terms implied into every contract of employment whether there is a written contract or not. The most common implied term to be breached that brings about constructive dismissal claims is that of mutual trust and confidence.

If your employer without reasonable and proper cause, acts in a manner that is calculated or likely to destroy the relationship of trust and confidence between the employer and employee that may give rise to a constructive dismissal.

If an employer unjustifiably issues a disciplinary sanction it may give rise to a breach of trust and confidence. An employer who acts in a bullying and/or aggressive manner may breach trust and confidence. A refusal to address legitimate employee concerns may constitute a breach of trust and confidence.

It must be noted that it is often hard for an employee to establish that there has been a constructive dismissal - therefore if you are thinking of resigning take advice before you take such a drastic step.

If you consider that you are being treated unfairly please contact Andrew Moore, andrew.moore@clough-willis.co.uk for a free initial consultation.