Constructive dismissal is when an employee resigns from their job because their employer is making their work environment impossible to deal with. Breach of an employment contract is a common reason for constructive dismissal.
If you find yourself in a situation of constructive dismissal, there are important things to know about it. Read the rest of this article to learn about valid grounds for constructive dismissal, how to claim a constructive dismissal, when to consult with a lawyer for assistance, and more.
What are Grounds for Constructive Dismissal?
In order for constructive dismissal to be valid, there needs to be evidence that an employer has seriously breached the employment contract, or the employee’s trust.
Breach of contract can include the following:
- The employer allows bullying or harassment in the workplace.
- The employer is unreasonable in their requests, such as by setting impossible deadlines or working hours for an employee.
- The employer demotes an employee without having a valid reason.
- The employer makes sudden or extreme changes to an employee’s job duties, which can prove challenging for the employee to fulfil.
- The employer isn’t paying the employee’s salary, for no valid reason.
- The employer isn’t making fair adjustments to accommodate an employee who has a disability.
- The employer doesn’t provide a safe environment for their employees.
Regarding breach of trust and confidence, this can include:
- Ongoing criticism of an employee that’s offensive and unfair.
- Ignoring or failing to investigate an employee’s complaints about the toxic workplace.
- Undermining an employee’s authority.
- Unreasonable monitoring of employees.
What’s Required for a Successful Claim of Constructive Dismissal?
In order for a claim of constructive dismissal to be successful, the following need to be evident:
- Intolerable workplace conditions. This should include a violation of employment contract, such as sexual harassment, bullying, or intimidation.
- The employer is responsible for the resignation. The employer must be the one responsible for creating the conditions that led to the employee resigning from the company.
- No reasonable alternatives. The employee needs to show proof that they attempted all other reasonable alternatives to resigning, such as complaining about their grievances to their HR manager.
- Causation. The employee needs to prove that the employer’s actions directly caused them to resign.
- Objective test. This states that any reasonable person in the same workplace as the employee would have also wanted to resign.
What Should an Employee Do During a Constructive Dismissal?
To ensure that an employee’s constructive dismissal is valid and their legal position is strong, they should follow these tips.
- Keep a record of all offensive behavior. The employee needs to keep track of all incidents that have happened, such as dates and times when they happened, copies of any emails or messages between them and their employer, and witness accounts of the offensive behavior.
- Report the grievances. The employee needs to show that they tried everything to resolve the issue instead of resigning. This can include reporting the grievance through the company’s internal channels.
- Review company policies. Employees should check these documents to learn about termination clauses, workplace conduct, and complaint procedures. They can also shed light on whether or not the employer has violated the contract.
- Remember the claim deadlines. When an employee wants to make a constructive dismissal claim, they will have to do so within three months of the date their employment ended.
- Stay professional until time of resignation. It’s important to continue to be professional at work, such as by avoiding any misconduct. This will ensure the employee protects their credibility and it prevents the employer from claiming that they’re not responsible for the resignation.
What are the Risks of Constructive Dismissal?
Constructive dismissal can pose some risks that are important to know about.
- Constructive dismissal can be challenging to prove. It’s not always easy for the employee to show proof that their workplace conditions are intolerable. This varies from a workplace that’s toxic or unfair.
- There are unemployment risks for the employee. If the claim of constructive dismissal isn’t successful, the employee could miss out on their severance or employment benefits.
- They might experience financial losses. During the time it takes to resolve the issue, the employee might not receive their pay checks.
- They could experience damaged work relationships. Constructive dismissals could cause straining to relationships with managers or other people at work, potentially affecting their opportunities in the industry.
How Do You Claim Constructive Dismissal?
If you’re dealing with a constructive dismissal, you can file a complaint with the Equal Employment Opportunity Commission (EEOC), which will try to resolve the issue, usually via mediation. If this doesn’t work to resolve the issue, you should consult with a lawyer who can file a claim for you in court.
Do You Need a Lawyer for a Constructive Dismissal?
Getting legal support for a constructive dismissal can be invaluable, especially if you’re finding it challenging to prove your claim. Here are some key ways in which a lawyer will help you.
- Your lawyer will gauge your situation to help you identify if the situation is constructive dismissal.
- They’ll assess if your employer’s behavior is a breach of your contract, such as if they’ve demoted you or stopped paying you without a valid reason.
- They’ll ensure you have a strong exit plan and advise you on the best way to resign so that you don’t weaken your claim.
- They’ll help you collect evidence of the breach, such as with witness accounts.
- They’ll calculate what you can gain after leaving the company, such as severance, bonuses, lost wages, and other benefits.
- They’ll minimize your risks, such as by protecting you against employer retaliation.
Do you need to hire a lawyer for constructive dismissal?
You can hire a lawyer on ContractsCounsel, an online legal marketplace that connects clients with experienced, vetted lawyers on the platform. They’re experienced employment lawyers who will assess your situation, explain if constructive dismissal is a valid claim, and help you to navigate the resignation process in a way that prioritizes your interests.
