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Telephone: 0131 336 1619

Free EnquiryWhat is Constructive Dismissal?

Most people are aware of the meaning of redundancy and the term ‘dismissal’. For many, they carry the negative associations of being fired or asked to leave a job. Few, however, are aware of the meaning of ‘constructive dismissal’ and with whom the responsibility lies in such a situation.

Constructive dismissal is a term used when an employee feels they have no other option but to leave their job as the direct result of their employer’s behaviour. Effectively, it is a form of resignation that is taken up by an employee when they feel they have no other options left. The sort of behaviour that could cause a constructive dismissal might include bullying, harassment or violence against the employee, a serious breach of contract or demotion of the employee without explanation, forcing an employee to accept unreasonable changes in employment without prior discussion and forcing an employee to work in dangerous circumstances.

Just as an employer has to justify making an employee redundant and adhere to certain guidelines, an employee wishing to pursue a constructive dismissal case must also follow certain procedures. In this situation, it is an employee’s responsibility to prove that the employer has committed a serious breach of contract, the breach has compelled them to leave their job and that they have done nothing to accept the breach or a change in employment conditions.

The Government has laid out a series of recommendations for anyone considering a constructive dismissal case. It is their belief that an employee should leave their job only “as a last resort”. Before this point is reached, an employee is urged to try and settle the dispute through a number of alternative routes such as discussing the problem with their manager or the Human Resources department, approaching an employee representative or contacting the Advisory, Conciliatory and Arbitration Service (ACAS). If none of these routes has any effect, the employee is then advised to consider taking out a grievance procedure against their employer, so that the issue is highlighted and has the potential to be resolved.

Out of options

In the event that the situation seems untenable and an employee feels they have no choice but to resign, they may have a case for constructive dismissal. This involves taking the case to an Employment Tribunal. As part of this, the employee would have to prove that their employer’s level of behaviour was enough that they felt forced to leave their job. At this stage, the employee should be seeking legal advice to guide them through the often-complicated procedure of launching a claim for constructive dismissal.

The ramifications of constructive dismissal need to be considered carefully and should never be undertaken in the heat of the moment. It can affect a person’s ability to claim certain entitlements such as Jobseeker’s Allowance, which can have a profound effect on someone who has recently left their job.

Most situations in the workplace can be resolved successfully if both parties are amenable and the problems are discussed in a calm and sensible manner. However, sometimes a problem can seem insurmountable, leaving constructive dismissal as the only option.

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