Should I resign and claim constructive dismissal?

If your employer acts unlawfully and commits a serious breach of your employment contract, you may need to resign. In this case, you may have a claim for constructive dismissal.

Before resigning, you should be aware that you will need to:

1. prove your employer committed a serious breach of your employment contract;
2. show that you did not accept or waive the breach; and
3. demonstrate that you had no other option but resign.

1. What conduct qualifies as a serious breach of contract?

Examples of serious breaches of contract by an employer include:

• unilaterally cutting your pay (including overtime and fringe benefits, such as a company car) or failing to pay you;
• arbitrarily demoting you to a lesser role without reason;
• disproportionate disciplinary measures;
• changing your job description/duties, working hours or place of work without your agreement;
• unreasonably refusing you time off for a holiday;
• threatening to dismiss you if you do not agree to accept changes to your employment terms and conditions;
• sabotaging your work product or making it impossible for you to do your job effectively through repeated interruption, confusing or inaccurate directions, or uncommunicated deadline changes;
• failing to give you reasonable support to carry out your job without disruption, harassment, or bullying from fellow workers;
• humiliating you in front of other staff or criticising you in front of subordinates;
• singling you out for no pay rise;
• forcing you to attend social events against your wishes;
• vandalizing your workspace, home or other personal property;
• if you’re a manager, putting you into excessively difficult work situations without supporting your decisions;
• refusing to look for an alternative role due to workplace stress;
• if you’re on maternity leave, failing to notify you of a vacancy;
• forcing you to do two peoples’ jobs without support;
• forcing you to work in conditions where health and safety regulations are ignored;
• seriously breaching the ‘duty of mutual trust and confidence’.

This duty of mutual trust and confidence is implied into every employment contract and means that employers and employees should not ‘without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between them’.

Examples of breaches of this implied duty include:

• wrongly accusing you of theft or other misconduct without evidence;
• if you want a transfer, lying to you that no vacancies exist;
• giving you a final written warning where it is not justified;
• failing to make reasonable adjustments, which amounts to disability or sex discrimination;
• foul and abusive language by a senior manager;
• other conduct deemed so seriously unreasonable it amounts to a repudiatory breach of contract.

Note, though, that if you are already in serious breach of the implied duty yourself, even if your employer is unaware of it, you cannot claim constructive dismissal.

Also recognise that proving a serious breach of contract occurred is not as easy as you might think. Locating witnesses and other tangible evidence to back up your claim is essential.

2. Did you accept or waive the breach?

Failing to resign within a reasonable period after the breach may be deemed an acceptance or waiver of it and an affirmation of the employment contract, thereby precluding a claim of constructive dismissal.

Note, however, that where there are a series of acts by your employer, which individually or in the aggregate constitute a serious breach of contract, culminating in a ‘last straw’ event that triggers resignation, your response may be measured from the last incident rather than the first. Thus, in this case, your failure to resign after the first act would not constitute an acceptance or waiver.

3. Do you feel forced to resign because of the breach?

Quitting your job should be your last option, so before you resign you should try to exhaust your employer’s internal grievance procedure -- unless this would be futile or put you in danger.

Resources

• Find an employment solicitor (Contact Law)
• Constructive dismissal FAQs (Findlaw.co.uk)
• How to claim constructive dismissal (Findlaw.co.uk)
• Constructive dismissal law news (The Solicitor)
• Employment law Q&A (Community)

This content is subject to Crown Copyright

Source:

FindLaw

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constructive dismissal

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