Constructive unfair dismissal arises where an employer fundamentally breaches the terms of an employee’s contract, and the employee resigns in response to that breach.
Fundamental Breach
For an employee to argue they have been constructively dismissed, they need to be able to demonstrate that there has been a fundamental breach by their employer. This could be one serious act or a series of smaller acts culminating in a final straw event, which caused the employee to resign.
In my experience, employees usually argue that there has been a chain of events, as it is uncommon for an employee to resign following one single act (although if the act was sufficiently serious to amount to a fundamental breach, they would be entitled to do so). This is usually because the Employment Tribunal prefer for an employee to try and resolve a dispute internally before making a claim. In these circumstances, an employee is likely to raise a formal grievance before resigning.
It is extremely important that an employer deals with any grievance in line with their internal policy or with the ACAS code of conduct (if they do not have a written policy). Failures within the grievance process, can add to the employee’s concerns and lead to their resignation.
Resignation
As set out above, in order to make a claim the employee needs to resign from their role following a fundamental breach of contract.
Usually, employees resign without notice, the idea being that they can no longer work for the employer due to the way they have been treated. However, if an employee does resign with notice, this does not in itself mean they will be unable to pursue a claim for constructive dismissal.
We appreciate that it is not always an option for an employee to resign without notice, as most individuals have financial commitments and rely upon their income. As such, there are instances where an employee could resign and give notice such as:
- Where their notice period is not particularly long – I usually say no more than one month but I have seen instances where longer notice has been given.
- Where the employee works remotely – this is on the basis they do not necessarily need to see or address the specific individuals responsible for the treatment on a regular basis.
- Where the employee is absent due to sickness – if the employee is already off sick due to the way they have been treated, I have known them to remain absent during their notice period.
The above are examples of the justification provided for giving notice.
Timing
It is imperative that the employee resigns ‘without delay’ following the fundamental breach and/or the last straw event. This is because an employee can be deemed to have affirmed (accepted) the breach if they delay too long.
In the circumstances, employees’ need to be mindful about how long they remain employed following any fundamental breach and should not allow any grievance procedure to drag on for an exceptionally long period of time. Although, I have seen instances where the employer’s failure to deal with a grievance within a reasonable timeframe has been used against them successfully.
Accepting the Breach
If an employee delays too long, there is the possibility that they will be deemed to have accepted the breach by continuing to remain employed.
In this situation, the employee would be unable to pursue a claim but there is always the possibility they will try.
I would recommend anyone considering constructive unfair dismissal seeks advice and guidance before taking any action, as the process can be stressful and there may be other options which could be explored.