Flashback to 2018. It was only two years ago, but it seems a lifetime. Football was coming home again, the thought of face coverings was simply not on the radar and the ruling of a constructive dismissal claim had just awarded a five-figure sum.
What is constructive dismissal?
In essence it is the resignation of an employee in response to an employer’s breach of the employment contract.
There are four key elements which must be present for a constructive dismissal claim to be brought:
1 – There must be a resignation from the employee. If there is a dismissal from the employer, this would be classed as an express dismissal rather than constructive.
2 – There must be a fundamental breach of contract, committed by the employer.
3 – The resignation must be related to, and in response to, the breach of contract. It’s possible that a claim which involves a resignation and a breach could be rejected where one is not a result of the other.
4 – Any claim must be made within a reasonable time frame. While there is no set legal time frame given, the longer it is left to bring a claim forward, the more likely it will be that the claim will be rejected due to the appearance of ‘acceptance’. The reasonable time frame is taken on a case by case basis and on the individual circumstances (often described as merits) of the case.
Do note though that with point four, the longer a prospective claimant leaves a claim for constructive dismissal, the higher the chance the claim may be rejected, taking into account the circumstances – even if the claim is valid.
How long do I have to have worked at a company to claim constructive dismissal?
Somewhat of a misunderstanding, it’s often thought that a minimum two-year length of service is required to bring a claim, without exception.
While this is usually the case, it’s not true 100% all of the time. There are indeed circumstances where there is no minimum service length required.
For contractual claims of constructive wrongful dismissal this is the case, however it’s likely that only damages for loss of pay and benefits would be brought.
Constructive dismissal examples
Constructive dismissal can be claimed for a number of reasons including, but not limited to:
- changing pay without consultation;
- changing an employee’s duties without consultation;
- failure to pay agreed bonuses or wages;
- where complaints or grievances are raised, the failure to properly and reasonably investigate;
- unacceptable verbal abuse;
- the degrading, intimidatory or humiliating reprimanding of an employee;
- unjustified or unreasonable suspension; and
- accusations of theft or wrongdoing without reasonable cause;
Where any of the above are evident, it is possible that a constructive dismissal claim could be brought.
Back to out dismissed case winner from the summer of football. The case, Mrs A Fletcher v Countrywide Estate Agents, saw an award of £60,252 after the company Fletcher worked for was acquired by the estate agents. Changes in Fletcher’s working environment caused stress and when she raised the issues nothing was done. This resulted in an ‘erosion of trust’ and ultimately to the awarding of over £60,000 as a result of the constructive dismissal.