Constructive dismissal

Constructive dismissal is a sub-division of the overall law on unfair dismissal. A constructive dismissal situation arises where an employee resigns in circumstances where he or she claims that the employer is in fundamental breach of contract, a breach of contract so severe that the the employee can treat him or herself as effectively dismissed.

As with most employment law issues, each case will turn on it’s own facts but it is important to stress that an employee should be careful before resigning and claiming unfair dismissal hastily, for several reasons. Firstly, as stated above, the employer’s breach must go to the root of the contract, such as an attempt to unilaterally change the employee’s pay. More minor breaches of contract, such as perhaps something non-financial or to do with the fundamental basis of the work might not be sufficient.

Secondly, in a  situation, as often occurs, where there is a build up to a specific event or series of events and where there has effectively been a breakdown in the relationship of trust and confidence, the employee may be better advised to try and “tough it out” and see if the employer will dismiss. The advantages in certain situations of this at law are that firstly, if the employer dismisses, the legal onus will be on the employer to justify that dismissal as fair. In addition, before dismissing, the employer will need to go through the correct procedures, since unfair dismissal, like many areas of employment law, requires a consideration not only of substantive fairness but also of procedural fairness. Many employers who are found liable in the Employment tribunal for unfair dismissal in fact can satisfy the “range of reasonable responses” test for substantive fairness but lose the case because they are unaware or do not properly comply with procedural fairness requirements, in terms of investigating fairly, advising the employee properly about a disciplinary process, dealing properly with any disciplinary hearings, appeals and so on. So, there can be a significant tactical advantage for an employee to see if the employer might dismiss, but clearly each case is different and it is always very important to get good legal advice from specialist employment solicitors on any employment law issue, and unfair or constructive dismissal situations are no different.