Dismissal from employment will normally be carried out by the employer. However, can an employee potentially treat the actions of an employer as amounting to a dismissal, resign and claim unfair dismissal?
Yes, this is known as a constructive (unfair) dismissal claim.
To succeed with such a claim, the employee must:-
- Be an employee (not for example self-employed) and must show that there was a fundamental breach of contract by the employer. This breach can result from a serious single incident, or it can result from a series of employer breaches, each individually less serious, but cumulatively sufficient to justify the employee resigning.
- Demonstrate that the employer’s breach of contract genuinely caused the resignation. It must therefore be the true reason for the resignation.
- Normally resign immediately (or very soon) after the employer’s breach of contract. An employee can sometimes work on following a serious breach, if they advise their employer that they are working under protest. If for example an employer suddenly fundamentally changed an employee’s contract, rather than resign immediately the employee could instead raise a formal grievance and work on, under protest, until the grievance was resolved. If the grievance did not resolve the issue, the employee might then still be entitled to resign and claim.
Constructive dismissal is vastly different to a standard unfair dismissal. In the case of a constructive unfair dismissal claim the onus is on the employee (rather than the employer as is normally the case) to establish that there was a dismissal and that the dismissal was unfair.
Resigning- intending to claim constructive unfair dismissal- is thus a huge step. It is often advisable to seek advice from a specialist solicitor before resigning.
