Constructive Unfair Dismissal

Have you resigned because you feel you have had no choice but to terminate your employment contract due to your employer's behaviour or conduct? Do you feel you have been forced out of your job because of the treatment you've endured at work? You may have a claim for constructive dismissal. If so, an employee is constructively dismissed if he resigns because the employer is in breach of the employment contract.

To claim constructive unfair dismissal, the employee must establish that:

• The employer was in breach of a term of the contract of employment
• and the breach was sufficiently serious, entitling the employee to resign
• and the employee resigned because of that breach of contract.

An employee who resigns in such circumstances can not only present a claim for constructive unfair dismissal, but also wrongful dismissal.

Qualifications for bringing a Constructive Unfair Dismissal claim

• To proceed, the Claimant must be an employee (rather than an independent contractor or self-employed), and must have been working for at least one year (although this requirement is subject to exceptions, for example, if the dismissal was pregnancy related).
• Furthermore, it is necessary for an employee to pursue a grievance with their employer prior to presenting a claim to an Employment Tribunal. By far the most important ramification of failing to lodge a grievance is that employees are prevented from bringing a constructive unfair dismissal claim. There is a minimum twenty-eight day period after lodging the grievance before an employee can initiate a claim. The second consequence of an employee's failure to comply with this requirement is a reduction in compensation following a successful Tribunal claim. The reduction is of any amount considered just and equitable by a Tribunal between 10 - 50%.

Remedies

• Employees who are successful in their claim for constructive unfair dismissal can request compensation.
• In order to achieve the maximum possible compensation, employees must be able to demonstrate to an Employment Tribunal that they have attempted to 'mitigate their loss' by evidencing applications for alternative employment. It is therefore essential that all relevant documentation is retained.