Three questions to consider before making a constructive dismissal claim

Feeling forced to leave a job is never a pleasant experience. Yet constructive dismissal – quitting employment due to poor conduct on the part of an employer – is exactly this. And it happens more frequently than one might expect.

With that being said, it’s crucial to consider three vital questions before making a claim for constructive dismissal. This is to ensure that the claim stands the best possible chance of being successful. Below are the three key questions anyone considering making a constructive dismissal claim should think about:

1.      What does constructive dismissal mean?

As we noted above, constructive dismissal is a situation in which an employee feels forced to leave employment due to a breach of their contract by the employer. This could involve the employer drastically changing their employee’s role, cutting hours or pay, or failing to pay the employee altogether. It also includes major issues such as bullying and harassment, and even violence or safety matters in the workplace. Any situation wherein an employee feels they essentially can no longer comfortably or safely attend their place of work due to direct or indirect terms of their employment being breached may fall under the term constructive dismissal.

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When in doubt, it may be helpful to contact Employment Law Friend or a similar specialist to ensure any future claims will have the best chance of being successful. ACAS is always a valuable resource too, outlining the details of employment law and what defines a claim.

2.      How might an employee prove constructive dismissal?

The first thing to consider is time: Employees must file a claim within three months minus a day of leaving their job. Subject to taking advice, they should also leave as soon as an employer breaches their contract (what is known as a repudiatory breach), rather than waiting. This is especially true for cases of safety or harassment, where it is vital an employee leaves and makes their position known as soon as possible.

The next step to consider is proving the resignation was in direct response to the employer’s misconduct. One way to do this is to give written notice upon leaving, stating the terms of the contract that were breached and how this has affected the employee in a negative way.

Lastly, employees must never affirm or waive the employer’s breach of contract. Again, written notice ensures this does not take place, as the employee clearly states their disapproval of the breach, and that they have felt forced to leave as a direct result. All of this material is important for a claim to be successful.

3.      What is the best way for an employee to resign?

A written resignation is always best, as it gives the employee the chance to outline why they felt forced to leave. It’s vital to succinctly state the reasons the employee feels their contract has been breached, as these will form the basis of the future claim. Demonstrating that the employee has left as a direct result of their employer’s breach of contract will ultimately give them the best chance to win their case. Employees facing constructive dismissal also may wish to leave without serving their notice period.

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It should be noted that it’s important to keep the resignation letter as short and to the point as possible. Statements such as ‘I’ve had such a great time at this company’ or ‘I will miss everyone!’ should never be included. It’s also a good idea to keep details to the essentials only. Simplicity is key; the rest may be added when the claim is made.

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