Guide to Constructive Dismissal

For any employee who feels that they have been dismissed unfairly, or been forced to resign due to irreconcilable working relationships or occurrences such as harassment, it is vital to understand how the law might be able to support you. A constructive dismissal claim is often a complicated one, and so the support of a solicitor is encouraged to ensure that forms and processes are completed correctly and within the legal boundaries and stipulations. This guide provides a wealth of information to assist those looking to make a claim, and provides details on required steps, likely timescales and potential outcomes.

When an employer hires an individual, they enter into an employment contract, and this contract details the terms of employment, the expectations of both parties and any clauses or flexibilities. If this contract is breached in any way by the employer, the law may be able to assist an employee in a claim against their employer.

What is Constructive Dismissal?

Constructive dismissal is where an employer has acted in an unacceptable way and seriously breaches an employment contract. In turn, this leads to an employee resigning in response to the employer's actions. Because of the nature of the employer's actions or treatment, the employee is treated as having been dismissed, and the employer's actions are often referred to as a ‘repudiatory breach'.

It is important to recognise that the employer's treatment must be in direct breach of a contract, rather than just a disagreeable action or encounter. Furthermore, it is necessary to cite the breach as the reason for resignation and that the employer considers themselves to have been ‘constructively dismissed'.

Requirements to Make a Constructive Dismissal Claim

There are stipulations in place to be able to successfully make a constructive dismissal claim. They include:

• An employer must have been employed for at least 23 months and 3 weeks in order to make a claim (unless the case relates to a case where no minimum service is required, such as discrimination).
• It is advisable to raise a formal grievance against your employer prior to resignation, to record your concerns.
• The reason for resignation should be stipulated at the time of resignation. one-day a tribunal to agree that you left for the reasons specified in your constructive dismissal claim.

Reasons to make a claim must be serious and might include actions such as:

• Your employer doesn't pay you or doesn't pay your specified amount at the specified time.
• Your employer tries to force you to accept unreasonable changes to your employment terms.
• You are the victim of harassment, bullying or abuse.

Time Limits for Making a Constructive Dismissal Claim

If an employee believes they may have grounds to claim constructive dismissal, it is important they seek legal advice from an employment law solicitor as soon as possible. Depending on the circumstances, employees wanting to make a constructive dismissal claim are usually advised to leave their job at the earliest opportunity. This is because an employee who continues to work in a particular environment or under certain circumstances may be viewed as one that accepts the behaviour or terms imposed on them.

An employee who intends to register a claim for constructive dismissal is best advised to begin the process as soon as possible. The time limit for beginning the claim is usually three months from the date of dismissal.

Starting an Employment Tribunal Claim

To initiate the claim at an employment tribunal, individuals must first complete an ET1 form, which is available from the Ministry of Justice website. Making a claim for constructive dismissal is often a complicated and difficult task, and so the assistance of a solicitor is likely to be needed. Once you have hired an employment law solicitor, they will be able to assist in the completion of all relevant paperwork on your behalf. Again, remember that the tribunal office must receive this form within 3 months of the dismissal date, not just posted by that date.

The office will send you a ‘Notice of Acknowledgement' to confirm receipt of the ET1 form shortly after you have sent it. If this is not received, it is imperative that you contact the office to confirm receipt.

The ET1 form will be copied and sent to the employer to allow them the opportunity to respond or defend themselves. From this point, the employer is referred to as the ‘respondent' and they reply using the ET3 form. You can expect to receive a copy of the ET3 response in around 4 weeks.

Following this, both the employee and employer will be called to a tribunal hearing. This is the opportunity for both parties to argue their case. The time that it takes for the hearing to go ahead varies greatly, depending on the case, location and the workload of the tribunal office. As a general pointer, the average wait time for a one day hearing is around six months.

It is important to remember that in many cases a claim for constructive dismissal will be settled without the need for a hearing at an employment tribunal. If the employer accepts that they have acted unfairly, it is likely that a compensation settlement will be negotiated between the solicitors acting for both parties. This is exactly why hiring an employment law solicitor at the earliest opportunity can be invaluable.

Compensation for Constructive Dismissal

In general, there are two outcomes of a successful constructive dismissal claim:

• Re-employment - If you want to be reinstated in your job, you can request re-employment.
• Compensation - Compensation can be awarded by a tribunal of up to £25,000. Compensation can cover loss of earning, bonuses and overtime. Furthermore, compensation can cover pension contribution losses and benefit losses. Compensation payments are subject to income tax, national insurance and state benefit deductions.

Other damages may be awarded for employees who were forced to resign following an employer's' act of unlawful discrimination, such as sexual harassment or racial discrimination.