Constructive Dismissal is where an employer commits a fundamental breach of contract, entitling the employee to resign in response to the employer’s conduct. The employee is entitled to treat themselves as having been “dismissed” and the employer’s conduct is often referred to as a “repudiatory breach”.
There must be a fundamental breach of an express contractual term, or the implied term of “trust and confidence” between both parties – It is not enough merely to show that the employer has behaved unreasonably. Furthermore, the reason for resigning must be because of the breach, and it should be made clear by the employee when they resign that they regard themselves as having been “constructively dismissed”.
It does not need to be one isolated incident that amounts to a fundamental breach of contract by an employer. There maybe a continuing pattern of behaviour or incidents which, taken as a whole, which amounts to a breach of contract. However, the ‘straw that breaks the camel’s back’ which prompts the employee to resign must contribute to the previous acts, so that together they all add up to a breach of trust and confidence between the two parties.
The burden of proof is on the employee to show that they resigned in response to a breach of contract so fundamental that they could not have been expected to continue working there any more.
The employee must resign immediately and must not delay unreasonably, such that in Law they will be taken to have accepted the breach. As a rule of thumb, an employee should normally resign within about a week, although circumstances can vary enormously.
The employee must also be careful not to be seen to have waived the breach by the employer by other means such as an e-mail which says they are happy with the changes to the contract of employment.