A Guide to Constructive Dismissal

29th August 2018

Constructive dismissal is when an employee is forced to leave their job because of their employer's behaviour. There are various issues that could qualify as bad behaviour, but you need to know exactly what could be regarded as contributing to constructive dismissal, and what doesn't.

Who can claim constructive dismissal?

Employees who have served under the same employer for two years or more can make a constructive dismissal claim. This two-year timeline includes your statutory notice period.

The reason for leaving needs to be serious

If you have been forced to leave your job due to any of the following reasons, you might be experiencing constructive dismissal:

- Your employer refuses to pay for the work you have completed
- Your employer took away the benefits your contract entitles you to, without explanation
- You have brought a grievance to your employer's attention, and they have refused to investigate
- Your employer forced you to undertake an excessive workload
- You were demoted without explanation
- You were not provided with a safe working environment
- Enforcing extreme changes to your work. Typical examples of this include undertaking night shifts contrary to a standard 9am-5pm contract or making you work excessive hours
- Your employer condones and/or encourages bullying.

In some cases, your employer might have broken your employment contract with a series of incidents that when viewed together, make things more serious. Out of all the above options, this is the most difficult to prove.

To make a successful claim, you will need to provide evidence of a specific breach of contract. For example, threatening text messages, samples of your completed work, bank statements reflecting your change in pay, and so on. Therefore, before you think about bringing a constructive dismissal case, make sure you have the evidence to back your claim up.

What constitutes a fair change in work?

Your employer is entitled to make reasonable changes to your work. For example:
- Implementing something your contract explicitly talks about
- Consulting you before making any changes
- Making changes as a last resort, as an alternative to something much worse like laying off staff, for example.

If you have a claim, what should you do?

Firstly, try and resolve any issues by courteously speaking to your employer. A simple discussion with your line manager might be all that is needed to put things straight.
If there is no improvement, and you firmly believe you have got grounds for a constructive dismissal case, leave your job. This might sound drastic, but it is necessary. This is especially true if you do not feel safe at work, or if you are frightened to enter the office.

Unfortunately, if you stay and put up with your ill-treatment, your employer can argue you accepted their offensive conduct.

Do not forget discrimination

Discrimination can occasionally play a role in this kind of claim. This also constitutes an irreparable break in your employment contract.

If you believe your mistreatment stems from one or more of the following, it might fall under the term, 'discrimination':

- Pregnancy
- Your race or ethnicity
- Your marital status
- Your sexuality
- Your religion
- Your gender
- Your age
- A disability you're suffering from

The two-year limit does not apply to employees who are victims of discrimination.
Is it worth making a claim?

Stereotypically, constructive dismissal claims are hard to prove. This makes them very tricky to win. When it comes to analysing whether it is worth going to tribunal, weigh up how much money you will get if you win; this is usually a good indicator of whether the process is worth your time and effort. Then, seek help from a professional who will analyse your case. They should give you a better idea of the likelihood of winning.

Note: This is not legal advice; it is intended to provide information of general interest about current legal issues

If you have any enquiries regarding points raised in the article, contact our Employment department on mail@mercerslaw.co.uk or 01491572138.

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