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Constructive Dismissal and Resignation

When an employee resigns in response to their employer's conduct which in breach of a fundamental term of their employment contract the employee may be able to establish that they have been constructively dismissed. The breach may be of an express term such as pay or an implied term such as mutual trust and confidence. Our constructive dismissal solicitors can provide you with the advice and support you need throughout your claim.

Implied terms are those which are seen to exist even though they have never been expressly agreed between the parties.

A breach of a fundamental term of the contract by an employer gives rise to a situation where the employee may treat themselves as dismissed for the purpose of employment legislation.

There are three elements to showing constructive dismissal:

  1. The employer was in repudiatory breach of the employment contract;
  2. The employee resigned in response to that breach; and
  3. The employee has not delayed in the resignation.

A delay in resigning may give rise to a situation where the breach is affirmed.

A contract can be breached through a series of actions accumulating to a last straw effect.

Timing of the resignation

Resignation has serious consequences and should not be done without proper consideration. However, if an employee wishes to rely on the breach it is important to react promptly. An employee may prefer to raise a written grievance if the breach is capable of being remedied.

Notice

An employee may resign with or without notice in instances of constructive dismissal. An employee should consider their personal circumstances when deciding whether to provide notice.

Grievance

It is not a legal requirement that an employee raise a grievance. A grievance shows a tribunal that reasonable steps have been taken to resolve the issue and that an employee has followed the ACAS guidance. A tribunal may alter a compensatory award by up to 25% if the ACAS guidance is not followed.

An employee may raise a grievance before, at the same time or after your resignation.

Compensation

Constructive dismissal is not a claim in itself. A tribunal will assess an employees losses in relation to any breach of contract claim or unfair dismissal claim.

A breach of contract is most likely to apply where an employee has resigned without notice and is a claim for the pay and benefits they would have received if they had been given their notice. For unfair dismissal claims please see our separate guidance on unfair dismissal.

There is a 3 month less a day time limit to lodge a claim at a tribunal from the date of the dismissal.

Instead of bringing a constructive dismissal claim in the employment tribunal or court, you could also consider trying to negotiate a settlement agreement with your employer. We have a wealth of experience in successfully negotiating settlement agreements.

 
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