A constructive dismissal occurs when an employee feels that his position has become so untenable that he has no other alternative but to resign.  However, unlike unfair dismissal cases, an employee has to prove to the Tribunal that there has been a dismissal and in order to do this, he has to show the following:

1. That his employer has fundamentally breached a term(s) of his contract of employment.  This is known as a repudiatory breach and must go to the ‘root of the contract’.
2. That he has left because of the breach.  It is also advisable for the employee to make it clear to his employer at the time of resignation that he believes he has been constructively dismissed.
3. That he has not waived the breach.  It is important that the employee acts promptly when his contract has been breached, because if he delays, he may be deemed to have accepted the breach, even if that was not his intention.

These can be difficult burdens for an employee to meet.  It is usual for an employee to raise a formal grievance with his employer prior to bringing a claim for constructive dismissal, and so where a grievance is received, it is important as an employer to act upon it, in order to show the Tribunal that they have acted reasonably.

Some examples of breaches that have given rise to claims of constructive dismissal are:

1. Reduction in pay
2. Changes in the nature of a job
3. Employers’ behaviour that destroys the relationship of trust and confidence.

Once an employee has established that there was a dismissal, the ET will go on to consider whether the employer acted reasonably in the same way as an unfair dismissal claim.  Like an unfair dismissal claim, an employee must lodge his complaint with the ET within three months of the effective date of termination.  A constructive dismissal is not necessarily an unfair dismissal however.

If you have had a claim made against you and you need advice, contact us.

If you have any general queries or would like any further information on constructive dismissal, please contact us.