What is constructive unfair dismissal?

Constructive unfair dismissal is a dismissal where the employee has resigned and where under the Employment Rights Act 1996, the employee terminates the contract under which they are employed (with or without notice) in circumstances in which they are entitled to terminate it without notice by reasons of the employer’s conduct.

Most successful constructive dismissal claims will be were no notice resignations were given. These should always be a red flag for employers. Why has someone resigned without notice and is it a sign that you are about to be accused of constructive dismissal? You need 2 years’ continuity of service to claim constructive dismissal.

Why do we need to worry about constructive dismissals?

Where an employee resigns and claims constructive dismissal it will often be on the basis that there has been a breach of the implied condition such as the one of ‘trust and confidence’.

Let’s give you an example.

Say Saira feels Adam is discriminating against her since she informed him of her pregnancy. She raises a complaint with HR and they don’t accept her grievance. This action alone could be be seen as a refusal to handle a grievance and therefore a breach of the employer’s implied condition of ‘trust and confidence’. Should Saira resign and claim constructive dismissal she will be able to claim that her employer didn’t follow its grievance procedure.

Why do people threaten Constructive Dismissal claims?

Often we hear that an employee tells the employer that they see the employers actions as constructive dismissal yet they remain employed. You can’t threaten constructive dismissal, you either claim it through the tribunal system or you don’t.

What is affirming a contract?

Affirmation is where the innocent party behaves in a way to say that the contract is continuing.

Although the innocent party does have time to elect whether to affirm or terminate, doing nothing for too long may be seen as an affirmation. Once an innocent party has affirmed a contract, the affirmation is irrevocable. By affirming a contract the employee can often accept the breach by the employer and choose to continue their employment.

If we can be of any assistance with any aspect of a resignation, please call us on 01527 909436.