Constructive Dismissal – Should I Resign?
Constructive Dismissal – Should I Resign?
Before you resign, I strongly suggest you obtain legal advice from an employment solicitor before you resign.
What is constructive dismissal?
If you resign from your job due to your employer’s behaviour/conduct, it may amount to [constructive dismissal]. In order to make a claim for ‘constructive dismissal’ in the Employment Tribunal, you would have to demonstrate the following:
1.Your employer has committed a serious or [fundamental breach] of your contract of employment,
2.You felt forced to leave due to that breach,
3. You did not accept your employers breach, or a change in your employment conditions.
In order to claim [constructive dismissal] the employee has to have two years service with the employer.
However, the employee does not need two years service to bring a claim in an Employment Tribunal for (i) discrimination (ii) harassment (iii) or any breach of the employer’s statutory “health and safety” obligations. Employees’ can bring a claim from day one.
What is unfair dismissal?
If your employer ended your employment due to a reason, which you believe to be unfair, due to either the reason why you were dismissed, or the process your employer used, then you may have been unfairly dismissed. This may make it possible to lodge a claim with an Employment Tribunal. I strongly suggest you obtain legal advice from an employment solicitor.
Should you be considering resigning, or lodging a letter of grievance to enter the grievance procedure, it is likely due to something that your employer has done (act), or failed to do (omission). A [breach of the employment contract] may lead to an employee resigning and claiming “constructive dismissal” in an Employment Tribunal.
Lodging a letter of grievance and then resigning obviates the very purpose of the grievance procedure. It does not provide the employer an opportunity to put things right. You need to look at your situation from the Employment Tribunals prospective. The Judge will likely take a ‘dim view’ if you lodge a grievance letter and then just resign. The employer would draw inference against you, due to the fact you had failed to provide it an opportunity to remedy any [breach] it potentially may have made.
Unless you earn mega bucks, you are better off NOT to resign. It is far better to exhaust the grievance procedure whilst remaining on as an employee.
Employment Tribunals receive about five thousand claims a week, albeit this figure was down due the introduction of fees in June 2013, which has been overturned by the supreme court in 2017. Therefore, the Employment Tribunal does not want to be burdened with needless claims, which could otherwise have been resolved had the grievance procedure been allowed to run its course. So, unless you have exhausted every avenue [prior] to lodging your Employment Tribunal claim, it would be far better to be seen to be “acting reasonably,” and either (i) wait twenty-eight days from the date you lodge your letter of grievance, or (ii) allow the grievance procedure to exhaust itself.
This accomplishes two things:
1) It demonstrates to the Employment Tribunal that you, the employee, were diplomatic in your efforts to seek an amicable outcome. The Employment Tribunal will take the view that the employee provided the employer every opportunity to put things right. This firmly puts the onus on the employer, as to what steps it could and should have undertaken to remedy any alleged breach.
2) You want to allow the employer every opportunity to hang itself. The employer’s involvement in the grievance procedure and subsequent appeal process will likely result in it making multiple mistakes. From my own experiences, the employer’s “acts and omissions” or “omissions to act” will start a ‘domino effect’ whereas the more it attempts to conceal its torts, the deeper the pit it digs itself. This is exactly what you want the employer to do. You can always add appendages to your initial grievance letter due to your employer’s torts.
When Should I Resign?
When your employer has fundamentally breached the contract of employment. A fundamental breach would be one so serious that the employment contract has to be terminated. See: [fundamental breach].
Should things be so bad that you cannot continue to attend work, then consult your doctor and explain what is happening at work. You want to make it very clear that your working environment is oppressive, and having a “detrimental impact” upon [both] your mental and physical health. Your doctor will likely sign you off from work due to “work related stress” due to the fact the working environment is [prejudicial] to your health.
Provide the “fit note” to your employer’s Human Resources Department, NOT your line manager (see fitnotes). This will buy you sometime away from your working environment, to think things through. The grievance procedure and your employer’s investigation can continue in your absence. You will likely find that your employer has a Grievance Handling Policy, which may be contractually binding. This policy should allow the aggrieved employee to correspond with the employer by writing during the interim period the employee is absent from work due to his/her “fitness” to attend work.
You want your employer to put as much in writing as possible. These [transcripts] can always be exhibited to the Employment Tribunal should your employer’s statements contain any informations from which you can draw inference against it. The employer is legally obliged to make “reasonable adjustments” for it employees’ who are disabled, or who fall under the definition of having a disability. Fitness to attend the grievance hearing will depend on the mental or physical health of the employee at the material time.
It’s always good to let your employer fall into its own traps. The more strings you can add to your bow, the better it will be for you in the Employment Tribunal. The more the employer writes, the more evidence you will gather against it.
Lodging a Tribunal Claim [ET1]
You must lodge an Employment Tribunal claim within three months less one day from the [last act] of discrimination or harassment. However, as of April 6th 2014, the clock will stop ticking to give ACAS a chance to provide pre-claim conciliation to obviate the litigative route. If ACAS are unable to reach a settlement between you and your employer then you will be given a unique reference number to lodge your claim with the Employment Tribunal. The three months less one day does not run from the time you lodge your letter of grievance. Should your employer not have concluded its investigation during this timeframe, you need to contact ACAS to start the pre-claim concilation process. Don’t leave it until the last minute!
However, to lodge a claim in the Employment Tribunal, you do not necessarily have to resign. You can make a claim in the Employment Tribunal and still remain on as an employee should you wish. You can state in your Employment Tribunal claim that you want to remain as an employee with the company. The EHRC has a comprehensive website which is invaluable source of information to employees.
Should you want to make a claim to the Employment Tribunal for “breach of contract” then you would need to resign at some point in time. I strongly suggest that you consult an advisor at the EHRC and/or an employment law solicitor to obtain further information on this matter should your claim involve any aspect of discrimination, harassment, less favourable treatment, victimisation or a violation of your human rights.
If you want to have a look at the law, to see what your employer may be in breach of, then see the segment on Breach of Contract.