Employment Law – What Is Constructive Dismissal?

I found this article relating to Employment Law which I thought may be of interest. So here it is for you

A Claim for Constructive Dismissal can present itself when a employee resigns due to the actions of their employer. The employer’s conduct must be suitably serious to be regarded as a breach of the employee’s employment contract with the employer. It may often involve a chain of smaller breaches, or a single incident such as a serious health and safety breach or withholding of payment. In order to make such a claim valid the employee must leave the business as quick as possible to avoid being seen as having accepted the breach, and must clearly state the reason for their resignation.

It is generally accepted that there are two basic forms of intolerable behavior regarded as a solid foundation for a claim of constructive dismissal. Direct behavior is where the employer actively behaves in a manner that is considered repudiatory or a breach of contract to the employee themselves, and this is what sparks their resignation. If the employer enacts rules or policies which adversely affect the individual or the group they are in, the employer has indirectly behaved in an inappropriate manner towards the individual. It must be remembered that the basic foundation of a claim of constructive dismissal the employer will need to have broken the terms of the employment contract or else breached the implied terms such as duty of care.

An employee should always first raise their grievances with the employer or management directly and explain what is bothering them. According to the Advisory, Conciliation and Arbitration Services (ACAS) guidelines, a formal meeting should be set up by the employer in which both parties try to work the problem out in a reasonable and constructive manner. The Employment Act of 2002 makes it clear that an Employment Tribunal can only hear cases after the employee has pursued their grievance through the companies own internal grievance procedures. The employee will need to take into account that if they decide to take their claim further to an Employment Tribunal, the Tribunal will tend to look more positively on an employee that has attempted to work with the employer to resolve the problem.

A claim to the Employment tribunal must be lodged within three months of the employee’s resignation. If there is a delay the tribunal may take this as a tacit acceptance of the breach. While in these cases the burden of proof falls to the employer, claims of constructive dismissal are sometimes hard to win because of the inherent peculiarities of each individual case. In practice it is quite difficult to prove that it was the employer’s behavior that caused the resignation by making it impossible for the employee to continue. It is always worth seeking legal advice at any stage in the proceedings to make sure a claim is still valid.

 

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