Constructive Dismissal: a guide
If you think you're the victim of constructive dismissal, then you're in the right place. We've put together a guide to tell you exactly what constructive dismissal is, and how you can deal with the consequences of what can be a very stressful situation. Who's to blame? What can you do if you feel forced to leave a job you love? Here's our point-by-point guide;
What's Constructive Dismissal?
Put simply; this is when an employee's forced to leave their job because of their employer's behaviour. There's a list of 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've 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 Explanation for Leaving Needs to be Serious
If you've 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've completed
¥ Your employer took away the benefits your contract entitles you to, without explanation
¥ You've brought a grievance to your employer's attention, and they've refused to investigate
¥ Your employer forced you to undertake an excessive workload
¥ You were demoted without explanation
¥ You weren't provided with a safe working environment
¥ Accepting extreme changes to your work was made compulsory. Typical examples of this include undertaking night shifts contrary to a standard 9am-5pm contract or making you work excessive hours, etc.)
¥ 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'll 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, etc.
So, 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's 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. i.e., laying off staff.
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's needed to put things straight.
If there's no improvement, and you firmly believe you've got grounds for a constructive dismissal case, leave your job. This might sound drastic, but it's necessary. This is especially true if you don't feel safe at work, or if you're 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.
Don't 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 doesn't apply to employees who are victims of discrimination.
Is it Worth Making a Claim?
Put simply, it all depends. Stereotypically, constructive dismissal claims are hard to prove. This makes them very tricky to win.
When it comes to analysing whether it's worth going to tribunal, weigh up how much money you'll 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'll analyse your case. They should give you a better idea of the likelihood of winning.
Steven Judge is a Partner and Head of the Employment Department, he can be contacted on 01323 434416 and by email sj@stephenrimmer.com