Employment law can be confusing at the best of times but one thing to be aware of is that both employers and employees have a range of legal and moral responsibilities. These responsibilities should be outlined in the contract of employment that both parties must sign.
It is reasonably common to hear of employees being sacked or suspended as a result of ‘breaching their contract’, but this actually works both ways. Employers can also act in contravention of the terms outlined in an employment contract. There are numerous ways in which an employer can breach their contract, many of which could potentially result in a constructive dismissal claim being made by an employee.
So what exactly is Constructive Dismissal?
Constructive Dismissal is essentially a situation in which an employer commits a breach that is so serious/fundamental that the employee is entitled to resign in response, and to consider themselves as having been ‘dismissed’. Constructive dismissal is an objective rather than a subjective concept. This means that a breach is still a breach regardless as to whether the intent was there. In order to make a claim for constructive dismissal, the employee will need to have been employed for at least two years, with some limited exceptions.
Constructive dismissal is different to unfair dismissal. Unfair dismissal covers a scenario in which someone is dismissed in a way that is unlawful, whereas constructive dismissal sees an employee essentially forced to resign in response to the conduct of their employer.
The following breaches by an employer may be seen as entitling an employee to claim constructive dismissal:
1. Threatening or carrying out a forced reduction of an employee’s salary. Employee pay has special additional protections.
2. Demoting an employee without evidentially good reason, or in breach of contract.
3. Alleging poor performance without foundation.
4. Reporting an employee to a Regulator without foundation, or without giving them the opportunity to respond.
5. Instigating disciplinary proceedings against an employee which are patently unreasonable.
6. Radically changing the nature of an employee’s role.
7. Harassing or bullying an employee (once or multiple times).
8. Failing to properly address stress at work (this includes being overworked).
9. Failing to make reasonable adjustments where the employee has a disability and has notified the employer of this.
10. Forcing an employee to work in breach of health and safety laws.
A breach does not have to be a ‘one-off’ event – it can be an accumulation of issues. This is often the case when bullying, harassment or discrimination are involved and the last incident may just be the one that forced the employee to take official action.
Implied rights/terms
Some basic rights are not included in all contracts but can be implied by statute as the bare minimum. Examples include those rights set out in the Employment Rights Act 1996 in terms of minimum statutory notice period. Other terms can be implied via common law, such as the duty of mutual trust and confidence.
If you feel that you may have sufficient grounds for a constructive dismissal claim, you could https://www.employmentlawfriend.co.uk/constructive-dismissal contact Employment Law Friend or a similar expert in order to discuss your situation and further understand your options. It is best to get advice as early as possible and you should always bear in mind that the onus is on you to prove that your employer breached their responsibilities, be they explicit or implied.
Employment law is notoriously complicated, so it is always important to seek expert advice and to be clear about what you should and shouldn’t do if you find yourself in a difficult situation at work.
