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What is Constructive Dismissal and when can you claim it?

When can you make a claim for Constructive Dismissal?

Before going into the circumstances when you can claim Constructive Dismissal, it is worth noting that you must have at least two years of continuous employment with your employer in order to be able to make a claim for Constructive Dismissal.

In order to be able to make such a claim, your employer’s conduct must either amount to a significant breach going to the heart of the contract or show that the employer no longer intends to be bound by one or more of the essential terms of the contract. You then can treat your contract of employment as discharged (Western Excavating Ltd v Sharp [1978] QB 761, CA).

You may wonder what a significant breach of contract could be. The truth is that there is no one specific definition for it, and each case would be considered by the Tribunal separately. As an example, imagine your employer decided to change your job role without your consent and informed you that from now on you will be paid less money. This would most certainly amount to Constructive Dismissal, as it takes agreement of both parties to make any amendments to the existing Contract of Employment.

It is worth saying, however, that employer’s mistake by oversight, or a delay in payment would not amount to such a breach. (Cantor Fitzgerald International v Callaghan & ors CA 1999). As to the change of your job description, you should check whether it has a clause stating that you should be able to do additional tasks, not necessarily specified in your written job description. It could be something around the lines that you should “perform other duties as assigned by your manager” or “perform other job-related duties as assigned”. If it does, it is perfectly acceptable for your employer to ask additional tasks from you.

However, breach of the express terms of your employment contract is not the only situation when you can claim Constructive Dismissal. There is also a concept known as – duty of trust and confidence. If your employer breached this duty, you may also be able to claim Constructive Dismissal.

“the employer must not, without reasonable and proper cause, conduct themselves in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.” (Woods v W M Car Services (Peterborough) Ltd: EAT 1981).

Breach of trust and confidence could be in different circumstances, for example, if your employer made unjustified accusations of theft. Further, in the case of Greenhof v Barnsley Metropolitan Borough Council, the Employment Appeal Tribunal held that an employer's failure to make reasonable adjustments under the Disability Discrimination Act 1995 was a breach of the implied term of trust and confidence, which the employee was entitled to treat as a fundamental breach of contract.

Another situation that can amount to Constructive Dismissal would be if you are threatened by your employer that he will change terms and conditions, and you would be dismissed if you don’t accept these new terms (Greenaway Harrison Limited v Wiles [1994] IRLR 380, EAT). Using foul and abusive language by your employer might also amount to Constructive Dismissal (Horkulak v Cantor Fitzgerald International [2004] EWCA Civ 1287). However, if you raised a grievance against someone within your company and it was upheld, it would mean that your employer took reasonable steps to rectify the breach, and you will no longer be able to claim Constructive Dismissal. For instance, in the case of Assamoi v Spirit Pub Company (Services) Ltd UKEAT/0050/11, an employee was prevented from claiming breach of implied term of trust and confidence against his immediate manager, as his grievance was upheld by a more senior manager.

If you have taken legal advice and a Solicitor confirmed that your situation is likely to amount to a fundamental breach from your employer’s side, you must leave your employer within a reasonable period following the breach. The reason for this is simply because if you continue your employment after the breach, it will be treated as affirmation of your contract and waiving the breach, in other words – if the breach was serious enough, you would have resigned; if you didn’t resign within a reasonable period of time and carried on working notwithstanding the breach – it was not as serious after all. Therefore, the longer you wait, the more difficult it will be to prove that your employer’s conduct amounted to a fundamental breach.

If you are an employee, you should be aware that Constructive Dismissal is very difficult to prove at the Tribunal. Let’s make a comparison to Unfair Dismissal. If you make a Claim for Unfair Dismissal at Tribunal, the burden of proof is on your employer to show that the reason for dismissal was fair, and that the correct procedure was followed by your employer. In contrast, if you make a Claim for Constructive Dismissal, the burden of proof is on you to show that that the breach by your employer was sufficiently serious to amount to Constructive Dismissal.

For legal advice and representation on Constructive Dismissal, or any other area of employment law, do not delay and speak with one of our dedicated employment law lawyers today on 0330 221 0684 or via email at info@klglaw.co.uk

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