Constructive dismissal occurs when an employee resigns due to a serious breach of their employment contract by their employer, often involving a breach of mutual trust and confidence.
Examples of such breaches include:
- imposing changes to hours, pay or work location without the employee’s consent
- the employer’s inept handling of disciplinary or grievance matters
- experiencing workplace bullying, with the employer failing to take reasonable steps to prevent it.
To establish a claim for constructive dismissal, the employee needs to be able to demonstrate that the employer’s actions are sufficiently serious to amount to a fundamental breach of contract and that these actions were the reason for their resignation.
An Employment Tribunal generally expects employees to have exhausted internal grievance procedures before resigning, with resignation typically being considered a last resort. It’s crucial, however, that employees do not delay their resignation for too long. Delaying could be interpreted as accepting or affirming the breach, which may result in losing the right to claim constructive dismissal.
If an employee resigns with notice, this action alone does not invalidate a constructive dismissal claim. However, the claimant should avoid appearing to have affirmed their contract after the employer’s repudiatory breach.
The ‘last straw’ doctrine allows for a claim of constructive dismissal if an employee resigns in response to a series of acts or omissions by their employer. Although each individual act may not be serious enough to constitute a repudiatory breach, the cumulative effect of multiple breaches can be viewed as a fundamental breach. The final breach—often referred to as the ‘last straw’—entitles the employee to resign based on the overall pattern of conduct. Employees must act promptly in response to the final breach; otherwise, they may be seen as having affirmed their contract.
