Constructive Dismissal


Is Constructive Dismissal Hard to Prove?

Have you ever had your contract seriously breached by your employer? Or felt forced to resign because of your employer’s hand in creating a hostile working environment and would like to put in a claim? This could be potentially considered constructive dismissal.

Constructive dismissal can be hard to prove, and few claims win at employment tribunals, but that doesn’t mean a claimant can’t be successful. With sufficient evidence, you may even be able to resolve the issue without having to quit your job.

Still unsure of how to go about the constructive dismissal process? Fear not, we’ve covered all the necessary steps that you’ll need to take to develop a strong case for your claim.

What Is Constructive Dismissal?

Constructive dismissal, to put it plainly, is when an employer’s conduct and actions make an employee’s working environment intolerable and as a result, compels them to resign. Though the employee has chosen to leave, as their employer has mistreated them, there has been a breach of contract, and so the employee is entitled to put in a claim.

In legal terms, the employer’s wrongful behaviour, which accounts for the “constructive” part has led to the employee’s resignation – the “dismissal”, which the law interprets as unfair.

Are Constructive Dismissal and Unfair Dismissal the Same?

The answer to this is no, although the two are similar.

Constructive dismissal in practical terms refers to when an employee feels forced to leave their job as a result of unjust and wrongful behaviour carried out by their employer.

Unfair dismissal describes the act of being fired unlawfully. This is usually the case when an employer has failed to follow the appropriate dismissal procedure and gave insufficient notice to the employee when firing them.

You can read further on both Unfair Dismissal & Constructive Dismissal over on the Government website.

When Can You Claim Constructive Dismissal?

You can claim for constructive dismissal when there has been a severe breach in a contract of employment by your employer. This does not have to be limited to a single incident, as it may be that your employer has committed a series of unjust actions over some time which has amounted to a breach.

Employer Actions That Could Amount to Claiming?

  • Harassment, bullying or discrimination at work by themselves or other employees
  • A significant reduction of your salary, or threat to reduce your payments with no given reason
  • Forcing you to accept changes to your working conditions or hours of work, without an agreement, or contractual right
  • Demotion without excellent and relevant reason
  • Refusal to pay you
  • Forcing the employee to work in an unsafe working environment

Is Constructive Dismissal Hard to Prove?

Employment law is very complicated, and unless you can provide evidence that your employer has radically made your job intolerable, then constructive dismissal can be hard to prove.

Make sure you read through your contract thoroughly before making any claims to ensure there are no open clauses. For example, if your employer has forced you to work in a different location, with varying hours or at a reduced salary it would be wise to make sure your contract states they are inhibited from enforcing this; otherwise, a tribunal may deem your employer’s actions to be fair.

Is Constructive Dismissal Hard to Prove?

Also, in most constructive dismissal cases, you can only claim if you have worked for your employer for at least two years. If you’ve been wrongly treated but have less than two years continual work with your employer, then a constructive dismissal claim will only be accepted in certain situations.

Either you have been discriminated against, or the reason for your claim classifies as being automatically unfair and so no qualifying period of work is required.

What Constitutes as Being Automatically Unfair That Amounts to a Breach of Contract:

  • You were either pregnant, on maternity leave, or paternity leave
  • Acted against a health and safety issue in the workplace
  • Are a member of a trade union and participated in trade union activities, or were acting as an employee representative
  • Acted to enforce statutory employment rights
  • You have performed in accordance with whistleblowing law by reporting your employer for wrongdoing

How to Prove Constructive Dismissal

There are a few essential steps that an employee should consider before looking to prove constructive dismissal.

Before resigning, you are advised to try to manage and sort the dispute between yourself and your employer first by lodging a formal grievance. This should be done in writing as it not only makes the employer aware of the issue at hand but allows your statement to go down on file. Also, keep a copy for yourself as you may need to refer to it at a later stage.

Filing a formal complaint could help the situation in several ways. First, by allowing your employer to resolve the dispute before it reaches tribunal, or as a tactical measure to support your reason for leaving, as it proves you made genuine efforts to amend the issue.

How to Prove Constructive Dismissal

It is also wise to seek legal advice from an employment law solicitor before making a constructive dismissal claim. Although this is not a legal requirement, a specialist can advise you on the strong points of your case and the prospect of it being unbeaten, which will help you better prepare.

If after lodging a formal grievance nothing changes, check to see whether your working situation corresponds to any of the actions that constitute a breach of contract. If you find that it does, leave your job immediately. While this may sound daunting, if you stay in your career, your employer could use that against you in a tribunal by stating you accepted the treatment you were receiving.

Put together a letter, which must be of exact and careful wording stating the fundamental breaches of contract your employer committed and try to gather as much evidence as you can to support your claim.

How Long After Resigning Can I Claim Constructive Dismissal?

You have exactly three months, minus a day from the date you handed in your resignation to make a constructive dismissal claim.

Before resigning, again, it is strongly recommended that you seek legal advice as to whether you do or don’t work your notice period as this may affect the success of your case.

How Long After Resigning Can I Claim Constructive Dismissal?

In your resignation letter, make your reason for leaving crystal clear, a convoluted resignation may make it appear as if your reason for leaving wasn’t due to your employer’s behaviour. 

Do not use glowing vocabulary, or thank your employer as that doesn’t depict the character of someone who is feeling forced to leave, and that could be used against you.

Also, please be aware that even if your constructive dismissal claim is successful, the compensation you receive could be limited. Sometimes employees and employers negotiate settlement agreements before the employee resigns, but this comes with significant risk, and so you should seek legal guidance if you are considering this prospect.

Ultimately, the constructive dismissal process is a complicated one, and you should seek legal advice before making any rash decisions. In most cases, employees who have not sought legal counsel have not been successful, and it’s best to have a tactical advantage when going to tribunal.

Employment tribunal was wrong to reject the wrongful constructive dismissal claim

In Rawlinson v Brightside Group Ltd, the EAT has held that an employment tribunal was wrong to reject the wrongful constructive dismissal claim of an employee who resigned when falsely told that he was to be dismissed due to a work reorganisation (the real reason was his performance). The tribunal erred both in its failure to find that the employer had acted in breach of the implied term of trust and confidence and in its characterisation of the employee’s complaint as relating to the manner of his dismissal. By deciding to give him a reason for the termination of his employment, the employer had assumed an obligation not to mislead, an obligation it then breached. The complaint did not relate to the dismissal but to the falsehood told with a view to keeping the relationship alive for the notice period.

R was employed as an in-house legal counsel by BG Ltd, a firm of insurance brokers. A few months into his employment, the company decided to dismiss R due to concerns about his performance, despite never having raised these with him. To ‘soften the blow’, R was simply told that BG Ltd had decided to outsource legal services. It wanted him to work through his three-month notice period to ensure a smooth handover of work. However, R resigned with immediate effect on the basis that that any outsourcing exercise would constitute a ‘relevant transfer’ under TUPE and the company was therefore breaching its statutory obligations. R subsequently brought employment tribunal claims for, among other things, breach of the duty to inform and consult under TUPE and wrongful constructive dismissal (based upon a fundamental breach of the implied term of trust and confidence).

The tribunal rejected R’s TUPE claims, finding that there was no relevant transfer. As for the contract-based claim, the tribunal found that the company’s failure to forewarn R of any performance concerns and the potential for dismissal did not amount to a breach of the implied term of trust and confidence. Although R genuinely, and with some cause, believed that he was unfairly treated, BG Ltd had no obligation to provide the information to him. The tribunal considered that R’s complaint was really about the manner of his dismissal. This meant that it would be precluded by the House of Lords’ decision in Johnson v Unisys Ltd 2001 ICR 480, where it was held that common law damages for breach of contract cannot be awarded in respect of unfair treatment connected to a dismissal. R appealed.

The EAT agreed with R that in all but the most unusual cases, the implied term of trust and confidence must import an obligation not to deliberately mislead. This does not mean an employer is necessarily placed under some broader obligation to volunteer information, such as a reason for dismissal. Nevertheless, where a choice has been made to do so, the implied term requires that it is done in good faith. Even allowing that there may be particular cases in which the operation of the implied term would permit some element of deceit – the ‘white lie that serves some more benign purpose’ – the EAT could not see how that was so here. The tribunal had therefore erred in failing to find that the implied term had been breached.

The tribunal had further erred in failing to see that R’s complaint did not relate to the dismissal, but to the falsehood told to him with a view to keeping the relationship alive for the notice period. It therefore did not fall within the ‘Johnson exclusion zone’. As the House of Lords recognised in Eastwood and anor v Magnox Electric plc (Brief 762), if an employee suffers loss as a result of an employer’s breach of the implied term in the steps leading to a dismissal, he or she has a common law cause of action that precedes, and is independent of, the subsequent termination of employment. R’s response to the communication of an untrue reason for his dismissal was to walk out, giving rise to a loss of earnings over the notice period. The EAT therefore allowed the appeal and substituted a finding that R’s wrongful dismissal claim should succeed.

Link to transcript:

If a director was named on the ACAS Early Conciliation form and the company on the Claim Form, should the claim be allowed to proceed (as this was a minor error)?

No, held the EAT, in Giny v SNA Transport Ltd.

The Claimant brought several claims, including constructive dismissal, against his former employer. When he was initially unrepresented, he contacted Acas for Early Conciliation and named the director, Shakoor Nadeem Ahmed, as the prospective Respondent. He then instructed solicitors to prepare his Claim Form which correctly named the Respondent as his employer, ‘SNA Transport Limited’. The employment tribunal rejected his claim as the Respondent had not been correctly identified on the Early Conciliation Certificate.. His solicitors applied to the tribunal to reconsider that decision on the basis that the use of the director’s name was a “minor error”, which (under the rules) allows a tribunal to overlook it.

The employment tribunal rejected that application.. Confusing the director with the company was not a minor error, and it had been right to reject the claim. The Claimant appealed.

The Employment Appeal Tribunal, although sympathetic, rejected the Claimant’s application. It said that a two stage test should be applied.. Firstly, was it a minor error? If not, the claim would be rejected..Secondly, if it was, the tribunal should go on to consider whether or not it was in the interests of justice to allow the claim to proceed.. Although in principle the distinction between a natural and a legal person could amount to a minor error, in this case it did not. Each case should be considered on its facts, and as there was no error in the tribunal’s Judgment, the Claimant’s appeal was dismissed.