Have you ever heard of constructive dismissal? It’s a term that is often used in the employment context but can be confusing to those who are unfamiliar with it. Simply put, constructive dismissal is a situation in which an employee is forced to resign due to a breach of contract by the employer. In this article, we will explore what constructive dismissal is, how it differs from wrongful dismissal, and what options are available to employees who believe they have been constructively dismissed.
Understanding Constructive Dismissal: Definition and Examples
Constructive dismissal occurs when an employer makes a significant change to an employee’s job or working conditions, making it intolerable for the employee to continue working. Examples of such changes may include a significant reduction in pay, demotion, change in job responsibilities, or a hostile work environment. The key factor that distinguishes constructive dismissal from other types of dismissal is that the employee resigns as a result of the employer’s breach of contract, rather than being terminated by the employer.
It is essential to note that constructive dismissal is not limited to changes in job duties or salary. Other examples of employer conduct that may lead to constructive dismissal include bullying, harassment, and discrimination. Employees who believe they have been subjected to constructive dismissal must demonstrate that the employer’s conduct amounted to a fundamental breach of their employment contract, which left them with no reasonable option but to resign.
How is Constructive Dismissal Different from Wrongful Dismissal?
Wrongful dismissal is a type of dismissal where an employer breaches the terms of an employment contract by terminating an employee’s employment without cause or without providing adequate notice or pay in lieu of notice. Unlike constructive dismissal, the employee in a wrongful dismissal case is terminated by the employer, rather than resigning.
In a wrongful dismissal case, the employee is entitled to damages that represent the amount of pay and benefits that they would have received had they been given proper notice of their termination. In contrast, in a constructive dismissal case, the employee is entitled to damages that represent the amount of pay and benefits that they lost as a result of resigning due to the employer’s breach of contract.
What Options are Available to Employees who Believe they have been Constructively Dismissed?
If you believe you are being subjected to constructive dismissal, there are several steps you can take to protect yourself:
- Raise your concerns: Speak with your employer to address any issues you are experiencing. This could involve raising the issue with your line manager, HR representative or using a company’s grievance procedure.
- Document the evidence: Keep a record of any conversations you have with your employer, emails, and letters, as well as any evidence of changes to your job responsibilities or other actions taken by your employer.
- Seek legal advice: Speak with a legal professional or trade union representative to understand your rights and to determine if you have a case for constructive dismissal.
- Consider resignation as a last resort: If you’re considering resignation, consider the impact that it could have on your ability to bring a constructive dismissal claim. In general, it’s best to try and resolve issues with your employer before resorting to resignation.
Constructive dismissal is a complex area of employment law that can be difficult to navigate for both employers and employees. However, it is important to understand what it is and how it differs from wrongful dismissal, particularly if you believe that you have been subjected to it. If you are an employee who believes they have been constructively dismissed, it is essential to seek legal advice as soon as possible to understand your rights and options.