Unfair constructive dismissal
You may be able to claim unfair constructive dismissal if you are forced to resign because of your employer’s unlawful behavior. In order to pursue a claim, you must show that:
- your employer committed a serious breach of your employment contract;
- you did not accept the breach; and
- you felt forced to resign because of that breach.
1. Serious breach of your employment contract
a. Examples of serious breaches of contract
Examples of serious breaches of contract by an employer in the context of unfair constructive dismissal include:
- unilaterally cutting your pay, overtime or fringe benefits (e.g., access to a company car), or failing to pay you;
- without reason, arbitrarily demoting you to a lesser role;
- 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 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 co-workers;
- humiliating you in front of other staff or criticising you in front of subordinates;
- disproportionate disciplinary measures;
- singling you out for no pay rise;
- forcing you to attend social events against your wishes;
- vandalising 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 if you report you’re suffering from workplace stress;
- if you’re on maternity leave, failing to notify you of a vacancy;
- forcing you to do the work of two people without support;
- forcing you to work in conditions where health and safety regulations are ignored;
- seriously breaching the ‘duty of mutual trust and confidence’.
b. What is the implied duty of mutual trust and confidence?
This duty 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 unfair constructive dismissal.
c. Proving a serious breach occurred
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. You did not accept or waive the breach
You do not need to tell your employer outright that you accept or waive the breach to lose your right to claim unfair constructive dismissal. Acceptance must, nevertheless, be unambiguous and unequivocal.
In this context, failing to resign within a reasonable period may be deemed as an acceptance or waiver of the breach and an affirmation of the employment contract, thereby precluding a claim.
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. You were forced to resign because of the breach
Provided you can establish a serious breach of contract occurred -- which you neither accepted nor waived -- you should not have much difficulty showing you felt forced to resign because of it.
4. Proving unfair dismissal
Once you demonstrate that you were constructively dismissed, you must also show that the dismissal was unfair. There are several ways to do this. For example, dismissal may be unfair because it was grounded on:
- pregnancy, maternity, or paternity;
- marital status;
- family ties;
- membership or non-membership of a trade union;
- assertion of a statutory right;
- industrial action;
- jury service;
- activities as an occupational pension scheme trustee; or
- health and safety.
This is not an exhaustive list.
a. Length of service
Generally, only employees who have two years' continuity of service can claim unfair dismissal. But this rule does not apply if you are claiming automatic unfair dismissal (NB. dismissal for any of the reasons listed above would constitute automatic unfair dismissal).
b. Filing time limit
You must also comply with strict time limits to claim unfair dismissal. Normally a claim must be brought within three months of the last day of employment, counting the last day of employment as the first day of the three month period.
c. Eligible employees
Moreover, certain categories of employees are barred from claiming unfair dismissal. These include members of the armed forces or police service and mariners.
d. Tribunal only
You can only claim unfair constructive dismissal in front of an employment tribunal.
5. Time Limits
The time limit for filing a claim for unfair constructive dismissal with an employment tribunal is within three months of your last day of employment.
6. Remedies for unfair constructive dismissal
There are two remedies available for unfair constructive dismissal: re-employment and damages.
If you want your old job back, you can ask for re-instatement. Or you can ask for re-engagement, which means a different job with the same or an associated employer. Few employees ask for re-instatement or re-engagement -- and a tribunal will not order either remedy unless you request it.
Damages for unfair constructive dismissal are limited by statute and consist of two elements: the basic award and the compensatory award. The basic award is determined by reference to a fixed statutory formula -- identical to the one used to calculate redundancy pay -- and is limited to a maximum overall payment of (as of 6th April 2014) £13,920. The current compensatory award limit is £76,574.
It is also possible that a tribunal will award additional compensation, where for example an act of unlawful discrimination by the employer (e.g., sex discrimination) forced you to resign.
In all cases, however, you are under a duty to mitigate your loss. This means you should take active steps to look for new employment as soon as possible.
7. Starting a claim
To start an action against your former employer, you will need to complete and file Form ET1. This form has space to include basic information about you and your former employer (e.g., your names, addresses, and the dates employment began and ended), and allegations which support your claim of unfair constructive dismissal. Your former employer then has an opportunity to respond, usually within 28 days, but this may be extended.
8. Can I claim both wrongful and unfair constructive dismissal?
Yes, you can claim both wrongful and unfair constructive dismissal. Any money received for unfair dismissal, however, will usually be cancelled out by the amount received for unfair dismissal (and vice versa) to stop you receiving double compensation.
Getting legal help
Employees sometimes opt to represent themselves in claiming unfair constructive dismissal, but seeking the counsel and representation of a qualified employment law practitioner is highly recommended.