| Topic Index |
|---|
| Overview |
| Breaches of contract |
| Examples of unfair constructive dismissals |
| Resources |
Overview
- A constructive dismissal is when an employee resigns with or without notice in circumstances where he could have resigned without notice because of the employer's unreasonable conduct.
- A constructive dismissal is not necessarily an unfair dismissal as the fairness or otherwise of the employer's action has to be judged by a tribunal. For example, an enforced demotion may be a fair constructive dismissal if the employee could otherwise have been fairly dismissed for gross misconduct.
Breaches of contract
- The unreasonable conduct must amount to a fundamental breach of contract.
- Such a fundamental breach can arise in relation to either an express term (e.g. a unilateral reduction in pay) or an implied term of the contract.
- The most important implied term, in the context of constructive dismissal, is the implied term of mutual trust and confidence. Any act by the employer which is likely or calculated to destroy this relationship of mutual trust and confidence will amount to a breach of such an implied term.
- A breach by the employer can be either one act by the employer if it is serious enough, or a series of actions which cumulatively amount to a breach. These are often referred to as 'last straw' cases and are common in cases of bullying or harassment. It does not matter if none of the incidents in themselves would amount to a serious breach, as long as cumulatively they destroy the contractual relationship.
- An employee must react immediately to the employer's fundamental breach and leave work as a result of it. A delay in resigning will probably be fatal to a constructive dismissal claim. An employee can continue working for the employer for a certain length of time following a fundamental breach - as long as he makes it clear that he is working under protest.
Examples of unfair constructive dismissals
- The following is a by no means exhaustive list of situations in which employees have resigned and successfully claimed unfair constructive dismissal:
- employer swearing at the employee
- arbitrary refusal of a pay rise to one particular employee
- unilaterally altering the basis of an employee's commission
- employee disciplined after employer had carried out a defective disciplinary procedure
- humiliating criticism and reprimand in front of other staff
- failure to provide safe working conditions
- failure to investigate health and safety complaint
- failure to investigate complaint of sexual harassment
- inexperienced manager not given adequate support
- refusal to carry out race discriminatory instructions
- failure to provide reasonable redress for a grievance
- making unjustified accusation of dishonesty
Resources
Worksmart (TUC)
Subscribers only - the employment team at 
