What is Constructive dismissal?
Constructive dismissal is when an employee is forced to leave their job against their will because of the employer’s conduct and/or behaviour.
The reasons the employee may leave their job must be serious, for example, they:
• don’t pay you or suddenly demote you for no reason
• force you to accept unreasonable changes to how you work -
eg tell you to work night shifts when your contract is only for day work
• let other employees harass or bully you
The employer’s breach of contract may be one serious incident or a series of incidents that are serious when all put together.
The employee should first try and sort any issues out by speaking to their employer to solve the dispute.
Expert employment solicitor Rebecca Reid explains and answers some questions around the rules of constructive dismissal.
What happens if an employee doesn’t resign straight away?
So part of the test for a constructive dismissal claim is whether the employee had resigned in response to the breach and whether they've done so without delay. Now what will amount to delay would depend on the particular circumstances, the key point is that if an employee is deemed to have delayed too long, then that will essentially what we call, would have affirmed the contract, which basically means they'll have lost the right to rely on that breach to then pursue a constructive dismissal claim. Now as I say it is based on the particular circumstances as to how long is going to be too long before an employee can have been said to affirm the contract. So some cases, for example, the employee might go of sickness absence straight away or they might raise a grievance which we talked about previously and obviously that may give them some time potentially to delay before they resign but ultimately it's not going to delay forever and the other point is that an employee can continue to work what we call under protest, which is where they make it clear to their employer that they are continuing to work they're not happy with the breach and that they're doing so under protest but again that can't be indefinite there has to be an end point that before a tribunal will say that they delayed too long.
Can someone resign for a one-off incident?
Yes, an employee can rely on just one incident, the test for an employment tribunal is whether the incident or incidents relied on by the employee, are enough to amount to a serious enough breach of that employee's contract. So it could just be that there is one very serious incident, that the employee is relying on, it could be that there are a series of incidents that form a course of conduct of employee then relies on to say between a breach.
What is meant by ‘the last straw’?
So the last straw of doctrine, allows an employee to resign in response to a number of breaches with that last straw being the one that triggers the resignation. The importance of what amounts to the last straw is that that on its own needs to be incident that you can refer to but it doesn't have to be necessarily the only instance or of itself a fundamental breach it can be something more innocuous but not of itself completely trivial.
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