What conduct constitutes constructive dismissal?

NICK ATTWELL of Ipswich-based Atwells Solicitors explains the actions by an employer which can amount to constructive dismissal

IN the current economic climate, pressure within the workplace can lead employees to contemplate resigning and then considering claims for constructive dismissal.

If an employer undertakes a fundamental breach of the employment contract then the employee can immediately terminate the contract without notice.

The employee must resign normally without giving notice before bringing a claim in the Employment Tribunal on the basis he has been constructively dismissed.

Constructive dismissal claims are very difficult if an employee is faced with or knows of disciplinary issues against him or her.

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In determining whether or not constructive dismissal has taken place generally it is the employer’s actions only which are considered.

Typical fundamental breaches of contract which constitute constructive dismissal include a unilateral variation of the employee’s contract of employment (if the employee agrees to the variation there cannot be a breach), a disproportionate disciplinary sanction and a breach of the implied term of mutual trust and confidence.

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Most constructive dismissal claims centre around the breach of the implied term of mutual trust and confidence. An employer’s conduct must be serious and the employer must not have a reasonable and proper cause for these actions. These actions must be aimed at destroying the employment relationship.

A fundamental breach of contract can also be based upon a series of acts by an employer such that the last act is the “last straw”.

An employer can also be liable for constructive dismissal as a result of the actions of others in its control.

In order to bring a constructive dismissal claim then the employee must resign in writing and the letter should make it clear that the breach of contract caused the resignation.

Employees must also ensure that they do not affirm the breach by delay.

If you are looking for preliminary advice in relation to claims for constructive dismissal then please contact Nick Attwell on 01473 746000 for an initial free consultation. Alternatively please e-mail him at nick.attwell@attwells.com.

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