Feeling forced to resign; what is constructive dismissal?

We spend a significant amount of time at work, with many areas of our life depending on our employment; family, finances, mental health, the list goes on.  If however you feel you cannot continue in your employment due to actions by your employer, but you have not been dismissed, you may feel the only option you have is to resign.  This is a big decision, and depending on the circumstances you could have a claim for constructive dismissal against your employer. Howard Robson, Partner in the Employment department, explains the situations where a constructive dismissal claim may be an option, the steps you can take before you resign and how to proceed in your claim if things do not improve.

What is constructive dismissal?

Constructive dismissal is when an employee is forced to leave their job because of their employer’s behaviour.  There are certain acts that could qualify as ‘bad behaviour’, and it is important to know exactly what would and wouldn’t be regarded as contributing to constructive dismissal.

The timing is also important as it is only employees who have served under the same employer for two years or more who can make a constructive dismissal claim.  This two-year timeline includes your statutory notice period, but does not apply at all if you believe your claim could be based on discrimination.  If you believe your mistreatment stems from one of the nine protected characteristics, it might fall under this category.  These characteristics are age, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation or if you have a disability recognised by the Equality Act. 

Your employer’s behaviour

If you do feel you have no other option but to leave your job due to any of the following reasons, you might have a claim for constructive dismissal:

• Your employer refuses to pay for the work you have completed.
• Your employer took away the benefits your contract entitles you to, without explanation.
• You have brought a grievance to your employer’s attention, and they have refused to investigate.
• Your employer forced you to undertake an excessive workload.
• You were demoted without explanation.
• You weren't provided with a safe working environment.
• Accepting extreme changes to your work was made compulsory, for example a change in your 9am – 5pm shift pattern to working night shifts. 
• Your employer condones and/or encourages bullying.

In some cases, your employer might have broken your employment contract with a series of incidents that when viewed together, make things more serious. Out of all the above options, this is the most difficult to prove if you decide to bring a claim against your employer.

You must remember that your employer is entitled to make some reasonable changes to your work, and the circumstances of each individual case will determine whether you may have a successful constructive dismissal claim.  The way your employer approaches these changes is fundamental; if your employer consults with you before making any changes then, depending on the outcome of those consultations, it could be difficult to prove constructive dismissal. 

Before you resign, try and resolve any issues by speaking to your employer; a simple discussion with your line manager might be all that’s needed to put things straight.  If there is no improvement, and you firmly believe you have grounds for a constructive dismissal case, then resign. This might sound drastic, but it is necessary, especially if you do not feel safe at work, or if you are frightened to enter the office. Unfortunately, if you stay and put up with the treatment, your employer can argue you accepted their offensive conduct. 

How to make a constructive dismissal claim

Stereotypically, constructive dismissal claims are hard to prove, and therefore difficult to win.  To make a successful claim, you will need to provide evidence of a specific breach of contract, for example, threatening text messages, samples of your completed work or bank statements reflecting your change in pay. 

“If you are in the position where you are being mistreated at work for any of the reasons in this article, I would suggest you contact us to discuss your situation,” explains Howard. “It may be there are other options for you before resignation, however if it does lead to this we can advise you as to the likelihood of a successful claim. If you decide to proceed, we can work with you throughout the entirety of your case, from the ACAS Early Conciliation stage of your claim, to negotiations and representing you in the tribunal.”

To discuss your claim with Howard or a member of the Employment team, call 023 8071 7717 or email howardrobson@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.