What is constructive dismissal?

Knowing your rights is very important when it comes to triggering the, commonly misused, process of constructive dismissal.

The lesser known ‘constructive dismissal’ is when an employer changes an employee’s job or working conditions with the aim of forcing their resignation. This can be a hugely traumatic experience for any employee, and one that any employer should seek to avoid. In the ever-changing jobs market, however, it is always worth being aware of your rights. We look at what you should know before triggering constructive dismissal proceedings.

What is constructive dismissal?

Often constructive dismissal is confused with unfair dismissal, and while the two fall into the same bracket, they are fundamentally different. Unfair dismissal refers to instances where your employer does not have good reason for dismissing your, or doesn’t follow the correct dismissal procedure.  On the other hand, constructive dismissal is when your employer pushes you to leave your job due to their behaviour towards you.

From this you may be able to go to a tribunal to claim unfair dismissal. Ultimately you have little other option than to leave. Some examples of an employer’s behaviour could include:

  • If they don’t pay you based on what was agreed
  • Suddenly demote you without warning
  • Force you to accept unreasonable changes to what you do as part of your job, such as asking you to work weekends in addition to the working week
  • Allow other employees to harass or bully you in the workplace
  • Victimise you themselves
  • Force you to work from a new location without agreement

In line with your rights as laid out in the Employment Act 1996, constructive dismissal could be one of these instances or a combination.

What is constructive dismissal?

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How easy is it to claim constructive dismissal?

Unfortunately for many employees, claiming constructive dismissal and proving it can be very difficult. It is not a decision that should be taken lightly. You must be able to prove your grounds for constructive dismissal and the decision to terminate your employment with hard evidence. This could be contractual breaches by the company in question or additional evidence that the employer seriously damaged the relationship of trust and confidence between the parties.

Timing is also an important point to consider, triggering constructive dismissal cannot be made too early as it will show a lack of willing to resolve the situation. Conversely, you must not show a future tribunal that you delayed for too long before making the decision.

How do I prepare for constructive dismissal?

As is the case with everything from negotiating a promotion to securing a pay rise, constructive dismissal claims need a strong strategy behind them. Looking in the first instance at your company’s grievance procedure can give you an opportunity of raising your concerns and frustrations, instead of just exiting the building. Importantly, grievances are likely to be formally recorded. Giving you a trail of evidence that you tried to find a solution to the problem.

This process should aim to resolve issues, for example if a manager is behaving particularly badly, this could be a time to rectify this or allow for a more senior manager to step in to resolve the situation. Further steps could be informing your trade union to gain support and the appropriate legal advice.

What is constructive dismissal?

Image: Adobe Stock Library

Other key stipulations of constructive dismissal include:

- You must have been with your employer for a minimum of two years
- The general rule is that you should file a claim within three months of resigning (although there are some exceptions)
- Get advice form an employment law specialist or solicitor

What is the impact of constructive dismissal?

While it is crucial to consider all the legal and procedural aspects of constructive dismissal, it is also important to prepare yourself mentally for the effects of pursuing such a claim. The aim of your employer in this environment is to isolate you and push you right to the edge of your limits. It is worth taking some time to think if anyone else has been treated in this way by your employer, as this could lead to collective action against the company. Not only will this strengthen a case, but provide for some emotional support and respite.

Constructive dismissal is also still a departure from the company whether you win or lose any subsequent legislation. Mentally preparing for what to do next is important – such as how to spend any redundancy money or compensation pay-out. This also means thinking about future employment. Where will you apply next and what you would look for in an employer in future should also be a consideration.

Constructive dismissal is not a path that anyone relishes, but knowing your rights at work is very important to ensure the swift resolution of any conflict.

Related Articles:

Wrongful dismissal: Know your rights

How to resign

Positive redundancy