Constructive Dismissal is a situation in which the employer commits a fundamental breach of contract, entitling and/or forcing the employee to resign as a response to their employer’s conduct. The employee becomes entitled to being seen as “dismissed”, with the employer’s conduct oftentimes considered to be a “repudiatory breach”.
This is in contrast to an unfair dismissal which is a situation in which you have been sacked in a way deemed unlawful.
A fundamental breach of either an explicit term in the contract or the implied term of “trust and confidence” between both parties must occur – proving that the employer has acted unreasonably is not enough. 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”.
A breach of contract by your employer may not be caused by just one isolated incident. There maybe a continuing pattern of behaviour or incidents which, taken as a whole, amount 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 for the notice period 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.