Constructive dismissal is the term used where an employee resigns in response to their employer’s conduct in breach of an important term of their employment contract.
If you have experienced the following problems at work, you may be able to bring a claim for constructive dismissal in the employment tribunal:
- If your contractual benefits are taken away;
- If you have been bullied or harassed at work;
- Unreasonable changes to how you work (such as changes to your working hours);
- If you have been demoted;
- If your employer refused to pay you;
- If your work environment is not safe; and
- If you didn’t have the adequate support needed to do your job.
For a constructive dismissal claim to succeed, you will need to demonstrate the following:
- Your employer was in repudiatory breach of the employment contract;
- You resigned in response to that breach; and
- You did not delay too long before resigning in response to the employer’s breach. If you continue working for any length of time without leaving, you are likely to lose your right to treat the contract as breached and will be regarded as having chosen to “affirm” the contract.
Given the requirements set out above, it can be difficult for an employee to succeed in a claim for constructive dismissal. It is essential therefore that before commencing a claim, you have the right employment law specialists to guide you through the process.
The ability to secure practical, reliable and friendly advice from an experienced employment law expert will be invaluable during this difficult time. It is important to know the options available to you and the right expert can help to put your mind at ease, advising you in respect of any potential cause of action, preparing your case and keeping you updated with the progress of any proceedings.
If you think that you have a potential claim for constructive dismissal, get in touch with our experienced employment law team who can advise you in respect of any potential cause of action you may have and guide you through your case. You can contact one of our employment experts on 0161 969 3131, get in touch on our website.
The Claimant was employed by the Respondent as a Support Worker, initially on six months’ probation. She was dismissed by the Respondent at the end of the six-month probationary period and the reason stated by the Respondent for the dismissal was due to concerns around her performance and interaction with colleagues. The Claimant appealed against the decision to dismiss and she raised the fact that she was suffering from depression which she contended, affected her behaviour towards colleagues.
It was accepted by all parties that the Claimant suffered from depression which amounted to a disability. The Claimant (who was a litigant in person) claimed that her dismissal was an act of disability related discrimination under section 15 Equality Act 2010.
The employment tribunal rejected the claim on the basis they concluded that the Respondent did not and could not reasonably have been expected to know that the Claimant was disabled at the time of the dismissal. It also found that there was no evidence to suggest that her behaviour towards her colleagues “arose in consequence of” her disability as the Claimant had alleged in her appeal against dismissal. The tribunal concluded that there were other reasons for her dismissal which were sufficient and that even if the Claimant had suffered unfavourable treatment because of something arising in consequence of her disability, the dismissal was justified under section 15(1)(b) Equality Act 2010.
The EAT allowed the appeal. They concluded that the tribunal had made errors in relation to each stage of the reasoning. The EAT held that although the Respondent did not know about the Claimant’s disability at the time of the dismissal, they may have acquired actual or constructive knowledge of it when considering the appeal and the rejection of the appeal formed part of the unfavourable treatment of which she was complaining. Secondly, the EAT found that here was in fact some evidence that her depression caused the relevant behaviour which the employment tribunal ought to have considered. Thirdly, it was sufficient for the “something arising in consequence” of the disability to have a “material influence” on the unfavourable treatment despite the fact that there may have been other factors in the decision to dismiss was not in itself an answer to the claim. Finally the EAT held that the employment tribunal failed to consider the section 15(1)(b) defence properly; in particular, they failed to address the question whether dismissal was a proportionate response in the circumstances.
The EAT therefore remitted the matter back to a fresh employment tribunal the issue whether the rejection of the Claimant’s appeal was an act of discrimination under section 15 Equality Act 2010.
In the summer of 2015, the Government announced plans to introduce a cap to exit payments made to employees of public sector bodies, proposing regulations to effect this cap under The Small Business, Enterprise and Employment Act 2015 (“the Act”).
After an initial flurry of interest and a consultation on the proposal, little further progress was made and the matter appeared to have been left by the wayside as the plans were never implemented.
However, the Treasury has claimed that more than 1,600 departing public sector employees received exit payments of more than £100,000 in 2016-17 at a cost of £198m. On the back of this, on 10th April this year the Government announced a further, and apparently final, consultation. As part of this consultation, draft regulations made under the Act have been published along with guidelines regarding how to exercise the proposed new powers.
The new consultation proposes to introduce a cap of £95,000 to exit payments, including:
- Redundancy payments
- Payments made under Settlement Agreements or via ACAS Conciliation
- Ex-gratia payments
- Payments for shares or share options
- Payments in lieu of notice
- Payments due under the terms of a fixed term contract
- Payments made on a voluntary exit
- Payments made to reduce/eliminate actuarial reductions to pension on early retirement
- Any other payments made as a consequence of a loss of office/termination of employment
The consultation closes on 3 July 2019 and responses must be in by this date.
Early commentary on the matter seems to deal mainly with two issues:
- The potential effect that the implementation of these regulations may have on members of the Local Government Pension Scheme, which still provides a mandatory right for employees who are made redundant when over 55 years of age to have immediate access to an un-reduced pension at the employer’s cost
- How the provision in the Act enabling public authorities to ‘relax’ the restrictions in the regulations is going to be exercised
The concern regarding pensions appears to be that, in their present draft, the regulations do not address how the potential conflict between the proposed £95,000 cap and the mandatory right to a full pension when made redundant over the age of 55 will be managed.
Regarding the exercise of discretion, there is a requirement for public authorities to comply with Treasury Guidelines or to have the consent of the Treasury before relaxing the cap on exit payments. Therefore, the ability to exercise discretion has not been given direct to the employer and may lead to protracted exit negotiations and disputes.
The concern is therefore that, rather than act as a curb on spending, the regulations in their current form may lead to more disputes and a fettering of the ability of public bodies to restructure and cut costs.
The European Parliament has approved new rules which will set minimum rights and increase transparency for workers in the so called Gig Economy. The UK will only be obliged to implement the new rules if it is still a member state of the EU three years after the new rules come in to force.
The laws will require employers to inform all workers about essential aspects of their employment on the first day, which includes a description of their duties, start date and pay information and an indication of working days or reference hours. Furthermore, exclusively clauses will be banned.
The new rules will apply to all those who work at least three hours per week, averaged over 4 weeks, and it is anticipated that the rules will catch at least 3,000,000 people. The rules will also apply to trainees and apprentices in similar circumstances.