Constructive Dismissal

Constructive dismissal is where an employee is forced to live their job against their will, as a result of the actions of their employer.

Every employer has a duty of care towards their employees, with intrinsic agreeements in every employment contract.

These unwritten terms state that an employer must provide:

• a safe environment for their employees to work in
• provide adequate tools and protection for the job that the employee is to undertake
• Able and helpful employees

If an employer fails to provide these very basic terms, it could prove detrimental to the employee, who may ultimately leave the job as a result of the employer actions. This would constitute constructive dismissal. This issue could then be taken to an employment tribunal in order to prove whether this allegation has merit. To read more about what to do if you believe you are dismissed unfairly, please click here.

As an employer, if you are taken to tribunal for constructice dismissal, you need to prove one of the following things:

• that the employee did not posesses the capability or the qualifications to perform in the role
• that the employee had a conduct issue
• there is a redundancy situation
• the employee breached a statutory restriction or did not perform a statutory duty
• Some Other Substantial Reason (SOSR)

Also, the tribunal will establish whether the employer acted reasonably, which is also characterised by the size of the organisation and the administrative resources of the same organisation. This decision is designed to be objective, and to view the event as logically as possible.

An employee can even be seen as waiving a breach by their employer by not lodging a complaint, especially if that employee is on long-term sickness and therefore is more likely to delay making any decision. Employees can however work ‘under protest’ for a short period time before they need to make a decision about whether they are going to quit their job and make a claim against their employer.

As an employer, you can come to a settlement agreement with your employee, which normally involves a financial package. As a result, the employment relationship comes to an end that both parties can agree with.

If you have any questions, or a worried about your legal responsibilities regarding constructive dismissal, email: info@in-househr.co.uk for more information.

Alternatively, if you are interested in how the In-House HR team can help you or would like a complimentary HR audit of your business, book a call here.