How To Prove Constructive Dismissal
The majority of employees resign because they have found a new job. Most of the time the decision to leave is made for financial reasons, but it may because employees don't get along with managers, co-workers, company policies, the company culture or customers.
Finding the right fit can be challenging for employers and employees, but there are times when a resignation centres around a serious breach of the employment contract. An employee can feel they have been dismissed, as a result of this breach, forcing them to resign. In some cases, a former employee can feel aggrieved and upset enough with the behaviour and actions of an employer to take them to an Employment Tribunal.
When it comes to proving Constructive Dismissal in a Tribunal, the responsibility rests on the employee. An employer brought before a tribunal will usually argue that there was no fundamental breach of contract and trust and that they did behave in a reasonable manner, in accordance with the contract. By contrast in a straightforward Unfair Dismissal case, an employer needs to prove the dismissal was fair and legal, according to employment law and the contract.
Generally, for a constructive dismissal case to be brought to a tribunal, an employee needs continuous employment for 23 months and 3 weeks, except when a resignation is the result of discrimination. Wrongful dismissal takes place when an employer dismisses without giving appropriate notice or in a constructive dismissal situation when the employee leaves straightaway as a result of the employer’s breach of contract.
How To Prove Constructive Dismissal
In either case, when the burden of proof is on the employee, they need evidence that an employer's actions were breaching the terms of the contract.
Examples of circumstances that may amount to a breach of contract enabling an employee to leave and claim Constructive Dismissal include:
- Unexpected reductions in pay, or not being paid when expected, without any reasonable explanation or notice
- A sudden demotion without reason
- Unfair and unfounded allegations of poor performance
- Unreasonable disciplinary procedures; especially when they are for so-called offences not covered in any employee handbook
- Harassing or bullying at work
- Forcing staff to work in breach of health and safety laws, potentially risking their own health
- A complete change in the work you are undertaking without sufficient notice or training
- Stress at work that has not been effectively addressed or resolved.
These are just some of the reasons that force staff to resign and look for other jobs that could come under the heading Constructive or Wrongful Dismissal. Employees need to demonstrate the breach has occurred, whereas employers need to show this isn’t the case and a resignation was voluntary.
Either way, resigning is something that should not be done lightly. We recommend seeking legal advice before taking that final step.
Need help proving constructive dismissal? Have you resigned and feel you have a valid claim for unfair dismissal? Or are you an employer, and need to demonstrate this was a fair and legal dismissal? With decades of experience in HR and employment law, for employers and employees, Davies and Partners are the team you need on your side.
Our team of specialist employment lawyers has gained a strong national reputation for the provision of a dedicated range of services to Employers and Employees throughout the UK, from our offices in Gloucester, Bristol, Birmingham and London.
Find out more about we can help you now – contact us. Davies and Partners: Your Employment Law Specialists.