Where an employer does not terminate the contract of employment but behaves in such a way as to damage or destroy the employment relationship, an employee is entitled to resign with or without notice and claim constructive unfair dismissal against the employer. This is only applicable where the employer’s actions amount to a fundamental and repudiatory breach of the employee’s contract of employment.
There are some essential requirements for a constructive dismissal:
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Constructive dismissal is where an employer has committed a serious breach of contract, which entitles the employee to resign in response to the employer’s conduct. The employee is entitled to treat him or herself as having been dismissed, and the employer’s conduct is often known as a repudiatory breach.
Constructive dismissal is where the employee has been forced to resign from their position due to their employer’s conduct making their position untenable. An employee still has to prove that their constructive dismissal was unfair. Unfair dismissal, on the other hand, is where an employee’s contract has been terminated by the employer without a potentially fair reason or where the decision to dismiss did not fall within the band of reasonable responses open to an employee.
Constructive dismissal claims involve a breach of contract by an employer which enables the employee to resign and bring a constructive dismissal claim before an employment tribunal. Some examples of a fundamental and repudiatory breach as found in other cases are:
To claim for constructive unfair dismissal the individual must be an employee and must have worked for an employer for at least two years. However, there are exceptions to this period where the claim requires no minimum service if, for instance, it relates to discrimination or whistleblowing. A constructive unfair dismissal claim must be brought within a period of three months from the date of resignation, as extended by any time spent in early conciliation with ACAS.
The burden of proof is on the employee to show that their employer acted in a way that made their position untenable and that their employer is in breach of the contract of employment either of an implied term or an express term. The employee must then prove that the employer was in repudiatory breach of contract, that the employee resigned, with or without notice, in response to that breach, that they did not delay too long before resigning or that they did not “affirm” the contract (for example by continuing to work without complaint and accept pay. The employee must also prove that they have not “waived” any breach of contract. Finally the employee then has to prove that the dismissal was unfair with regards to section 98 Employment Rights Act 1996.
Timescales for your case may vary depending on factors such as barristers’ availability, the complexity of your case, the need for additional documents and the other side’s approach. However, as a guide more straightforward cases tend to have a hearing date within four to six months of a claim being made. More complex cases may take a year or more to resolve. We are used to dealing with instructions quickly and adhering to Tribunal timetables.
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