In order to constitute a ‘fair’ dismissal, an employer in the UK must show that it is due to one of five specific reasons. They must also ensure that they have acted fairly and reasonably in carrying out the dismissal. However, in today’s precarious, evolving business environment, workplace conflicts and disputes are becoming ever more common.
According to Personnel Today, unfair dismissal continues to be one of the most common types of employment tribunal claim pursued by UK employees – a report from the Tribunal Service stated that employment tribunals received a total of 46,300 unfair dismissal claims between 2011 and 2012.
The UK also ranks as the third worst country for employee protection, according to the Organisation for Economic Co-operation and Development (OECD)’s survey of 30 countries and 10 emerging economies.
What defines constructive dismissal?
Essentially, constructive dismissal occurs when an employee decides to terminate their employment with an employer in response to their treatment of them. Although no official dismissal has actually taken place, the emphasis is placed upon the employer treating the employee sufficiently badly that the employee is entitled to regard themselves as having been dismissed. Essentially, the employer is viewed as having ‘breached’ the terms of their employment contract.
Are there any examples of constructive dismissal?
There is no exhaustive list of conduct or behavior that could amount to a breach of contract – one singular, serious breach, or a pattern of more minor actions or incidents, may result in a constructive dismissal claim. Common types of breach could include:
- Non-payment in salary, either in part or full
- Sudden demotion without good reason
- Unreasonable changes to working practices (e.g. sudden change of location or working hours)
- Refusal by an employer to make reasonable adjustments for a disability
- Being asked to ignore health and safety issues or work in dangerous situations without adequate protection
- Failure by an employer to address bullying or harassment in the workplace
- Unfounded allegations of misconduct or poor performance
What must an employee prove to claim constructive dismissal?
The employee must show that they have resigned in response to a fundamental breach of contract by their employer. The Employment Rights Act 1996 states that if an employee terminates their contract in circumstances in which they are entitled to do so without notice, due to an employer’s misconduct, then their termination constitutes a dismissal.
Sometimes the conduct will be the breaching of an express term of the contract of employment, such as the right to be paid a certain amount on a set date. More commonly, it will be that the employer’s behaviour has breached the term of mutual trust and confidence that is implied in all contracts of employment. Essentially, the term requires employers to refrain from conducting themselves in a manner that is likely to destroy or seriously damage the relationship of trust and confidence between employer and employee. This could include isolating the employee, humiliating them in front of others or falsely accusing them of misconduct.
What is the difference between constructive and constructive unfair dismissal?
The distinction between constructive dismissal and unfair dismissal. Constructive dismissal is essentially a breach of contract claim – this means that the only damages available to the employee claiming are those sums which are due to them under the terms of their employment contract. If they have resigned without notice, this will usually be made up of their notice pay or any other contractual benefits due. They do not need any length of service to claim constructive dismissal.
An unfair dismissal, on the other hand, is a statutory claim which, in most circumstances, can only be claimed an employee with two or more years of service. Often, these employees will combine their constructive dismissal claim with an unfair dismissal claim – providing the term ‘constructive unfair dismissal.’ If a tribunal finds the employer liable for constructive dismissal, the finding of unfair dismissal is likely to follow.