Constructive unfair dismissal – an employer’s perspective

Depending on the specific facts, this type of situation could also give rise to a claim for constructive unfair dismissal, either if that employee has 2 years’ continuous service, or if the resignation is connected to a reason which does not require a qualifying service period.

Claims for constructive unfair dismissal

In pursuing a claim for constructive unfair dismissal, an employee will seek to establish that the employer has breached the contract in such a serious way that the employee was left with no alternative but to resign.

Whilst many resignations will be a straightforward voluntary resignation, employers should be mindful of the types of conduct that could lead to a claim for constructive dismissal. Such conduct could be a breach of an express term, such as the obligation to pay, or of an implied term, such as the duty of trust of confidence.

The decision to resign can be in response to a single incident, or a series of incidents, the last of which has prompted the employee to resign (this is known as the “last straw” principle).

In considering a claim for constructive unfair dismissal, an employment tribunal will take into account various factors, including delay.

Any significant delay between the alleged breach could suggest that the employee has accepted the breach and affirmed the contract and is no longer entitled to treat it as sufficient reason for resignation. It is therefore crucial that an employer keeps copies of any correspondence exchanged and maintains accurate records of any dialogue.

Seek legal advice when faced with a constructive unfair dismissal claim

It is also vital that an employer seeks to address any concerns raised by an employee as failure to address a grievance (either at all or within a reasonable timeframe) could be deemed sufficiently serious to entitle the employee to resign and claim constructive dismissal.

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