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Constructive dismissal

Constructive Dismissal

 

Introduction to the concept of constructive dismissal

 

Where an employee feels forced to resign there may be a claim of “constructive dismissal.”

This arises when the employer is in breach of a “fundamental term” of the employee’s employment contract.

Fundamental terms of an employment contract include pay, hours, working conditions, and ( most commonly relied on) the implied term of trust and confidence.

 

Constructive Dismissal: the implied term of trust and confidence

If an employee has been treated in such a way that the Employment Tribunal conclude they should not have to put up with it, then there has been a breach of the implied term of trust and confidence.

 

Constructive Dismissal: linking the breach of contract with the decision to resign

It is not enough that there is a breach of a fundamental term by the employer, the employee has to show that this was the reason they resigned.

 

Constructive Dismissal: the effect of delay before resigning

An employee must not leave it too long before resigning. Any delay in resigning of more than a couple of weeks or so may disqualify the employee from claiming constructive dismissal, but there is no set time set for a deadline. In any case, where an employee relies on a course of conduct by an employer, as long as the employee does not delay too long after the last act, the claim is still valid. In other words trust and confidence can be gradually eroded over a period of time.

 

Constructive Dismissal: assessing the seriousness of the employer’s conduct

An employer’s conduct must be viewed objectively, even if it has actually caused the employee to lose trust in the employer, it is the conduct which is to be judged, not the effect it had. Employers can be unreasonable, rude or difficult without necessarily being in breach of this term!

Employers may also occasionally find themselves in breach of this term despite acting with the best of motives.

Where an employee has been constructively dismissed, it is usually also an unfair dismissal.

 

Tips for finding a solicitor to deal with a claim of unfair constructive dismissal

Specialist legal knowledge and experience is a good start, but to “get the edge” it is useful to find a solicitor with experience of representing clients at Employment Tribunals, particularly at the Employment Tribunal where your case is likely to be heard. This is because familiarity with the way a Tribunal is likely to assess particular cases and particular circumstances helps effective advice and preparation right from the start.

Most of our experience here at John Halson solicitors is based in representing clients at the Liverpool Employment Tribunal which covers claims arising from people who have worked in north and central Cheshire including Chester, Warrington, Northwich, Middlewich, Winsford, Tarporley, Ellesmere Port, Great Sutton; and Merseyside including Liverpool, Birkenhead and the Wirral,  Widnes, Runcorn, St Helens, Kirkby, Maghull, Skelmersdale, Ormskirk, Southport, and Formby.

We also regularly appear in the Manchester Employment Tribunal and occasionally in the Leeds, Birmingham and Shrewsbury Tribunals.

 

Disclaimer

Please note that the information on this page is intended to be a guideline and is therefore a summary of the law only and not a complete guide. Before taking any action based on this information you are strongly advised to take legal advice. Whilst every effort has been made to ensure that the information contained on this page is up to date and accurate, no guarantee can be given to this effect.

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