Unfair Dismissal

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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.

Yes, if the date of termination is in dispute, held the EAT in Basra v BJSS Limited.

Pre-termination discussions between employer and employee are protected under section 111A Employment Rights Act 1996 and cannot therefore usually be referred to by either party in an unfair dismissal claim, unless there has been “improper behaviour”. In Basra, however, the EAT held that there is an exception to this rule if the date of termination is in dispute.

The Claimant wrote an email to the Respondent in response to a without prejudice offer letter it had sent saying “today will be the last day at BJSS”. The Claimant then stopped attending work, and later brought a claim for unfair dismissal. BJSS argued the Claimant’s employment had ended by mutual termination and, in the alternative, the email was a resignation. The Claimant denied resigning and said he had been dismissed by BJSS at a later date. The tribunal, following Faithorn Farrell Timms LLP v Bailey, noted that s111A protection cannot be waived (unlike without prejudice negotiations) and excluded BJSS’s offer letter as protected under s111A ERA.

The EAT held that as the protection under s111A only applies to pre-termination negotiations, “the chronological line between what is, and what is not, admissible therefore lies on the point at which the contract is terminated”. The EAT went on to say that “where there is a dispute as to whether or not the contract was terminated on a particular date, the tribunal would not be in a position to say what evidence should be excluded until that dispute is determined”. Thus the tribunal needs to determine the termination date before applying s111A

In De Mota v ADR Network and anor, the EAT has held that an employment judge erred in rejecting a claim on the basis that the early conciliation (EC) certificate named two respondents. Although rule 4 of the Schedule to the Employment Tribunals (Early Conciliation: Exemption and Rules of Procedure) Regulations 2014 SI 2014/254 (the EC Rules) requires a prospective claimant to present a separate EC form in respect of each respondent when contacting Acas, it does not apply to the EC certificate itself, and there is no rule that renders unlawful a certificate that names two respondents.

DM worked as an HGV driver for the Co-Operative Group Ltd (CG Ltd) between 2012 and 2015. He sought to claim unfair dismissal, breach of contract, unlawful deduction from wages, holiday pay and notice pay. His case was that he was employed by, or contracted to work for, ADR, and that ADR assigned him to work for CG Ltd. ADR and CG Ltd disputed this, saying that DM had set up his own company providing his services to ADR, and that ADR provided his services to CG Ltd. DM completed an EC form online. The information provided to online applicants states, in accordance with rule 4 of the EC Rules, that in order to make a claim against more than one respondent the claimant must complete a separate form for each one. However, DM completed just one form, putting ‘ADR Network and The Co-operative Group’ in the box for the respondent’s name. He gave an address which is both the depot of CG Ltd and a business address of ADR. Despite the error, Acas issued an EC certificate, which identified the ‘prospective respondent’ as ‘ADR Network and The Co-operative Group’. DM went on to present his claim to an employment tribunal, naming ADR and CG Ltd as two separate respondents.

An employment judge rejected DM’s claim for non-compliance with the EC Rules. He ruled that the form that DM had submitted to Acas named neither of the respondents but rather a non-existent entity whose name was the conjunction of the names of both respondents. He noted that rule 4 renders it necessary to submit separate forms in respect of separate respondents. He therefore concluded that DM had failed to provide the required information in the prescribed manner and so the tribunal was deprived of jurisdiction by S.18A of the Employment Tribunals Act 1996. DM appealed to the EAT.

The EAT allowed the appeal. His Honour Judge David Richardson, sitting along, noted that, following the EAT’s approach in cases such as Mist v Derby Community Services NHS Trust (Brief 1040) and Drake International Systems Ltd and ors v Blue Arrow Ltd (Brief 1040), it is clear that the purpose of the EC provisions is limited – it is not to require or enforce conciliation, it is simply to build in a structured opportunity for conciliation to be considered. Furthermore, it is no part of the provisions to encourage satellite litigation. HHJ David Richardson pointed out that S.18A ETA, which sets out how the tribunal’s jurisdiction depends on compliance with the EC provisions, focuses upon the existence of an EC certificate. In his view, Parliament did not intend that the process leading up to the certificate should be subject to criticism and examination by the parties or the employment tribunal. For one thing, as was pointed out in Mist, if the prospective claimant does not provide the prescribed information in the prescribed manner, the EC Rules make it plain that Acas is not bound to reject the claim. For another, if it were open to the parties or the tribunal to go behind the certificate, it would also be open to them to challenge Acas’s conduct of the conciliation procedure. Thus, the employment judge erred in law in going behind the certificate and finding that DM failed to provide the prescribed information in the prescribed form to Acas.

HHJ David Richardson went on to hold that the employment judge was wrong to rule, in effect, that Acas had issued an unlawful certificate. Rule 4, which requires individual respondents to be named on separate forms, does not apply to the EC certificate, and there is no similar mandatory requirement elsewhere in the EC Rules. Nor should such a requirement be implied, especially where the effect would be to bar access to the legal system for a litigant based on a technicality. It may be that the issuing of a single certificate was an error on Acas’s part but that is not the same as saying that it was an unlawful certificate. The appeal would therefore be allowed and the claim remitted to the employment tribunal for proceedings to continue.

Link to transcript: http://www.bailii.org/uk/cases/UKEAT/2017/0305_16_1309.html

Did suspension of a teacher amount to a breach of the implied term of mutual trust and confidence?

Yes, held the High Court in Agoreyo v London Borough of Lambeth. In this case, a teacher was suspended because of the force she used with two children. She had not been asked for her response to the allegations and there was no evidence of consideration given to any alternative to suspension. She resigned the same day.

Foskett J held, following Mezey and Gogay, that suspension was not a neutral act, at least in the context of a qualified professional in a vocation, such as a teacher. Taking into account the statutory guidance for local authorities, it was noted that a knee-jerk reaction must be avoided and that suspension must not be the default position. The reason given for the suspension was not the protection of children, but to “allow the investigation to be conducted fairly”.

The Court concluded that suspension was adopted as the default position, was a knee-jerk reaction, and amounted to a repudiatory breach of contract. This was not undermined by resignation in friendly terms.

NB the court did not have before it the question of whether this case was an attempt to circumvent the statutory qualifying period for unfair dismissal claims and fell within the ‘Johnson exclusion zone’.

Link to the case