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Constructive dismissal occurs following a fundamental breach of contract by the employer, which cannot then rely on that contract in the future. Therefore, if an employee can show that they have been constructively dismissed, they may not be bound by post-terminatk restrictions in the contract, such as restrictive covenants preventing the employee from contacting the employer's clients. If an employee wants to avoid contractual restrictions - perhaps because they are joining a competitor - they might assert constructive dismissal
Constructive dismissal is far more difficult to prove than employees often think. First they must prove a fundamental (rather than minor) breach of contract by the employer. The employee must also show that their decision to terminate their employment was in response to the breach and not, for example, because they had been offered a more attractive job. An employment tribunal will also need to satisfy itself that the employee did not delay too long in ( resigning. A tribunal will usually expect an employee to have tried to resolve the complaint through the grievance procedure before jumping ship.
Constructive dismissal is not a claim in itself, but if a claimant who has resigned demonstrates that they have, in effect, been dismissed they can go on to claim unfair resigned in response to a fundamental breach of contract by the employer. The Employment Rights Act 1996 essentially says that if the employee terminates their contract in circumstances in which they are entitled to do so without notice because of the employer's conduct, that termination constitutes a dismissal Sometimes that conduct will be the breach of an express term of the contract of employment, such as the right to be paid a certain amount on a certain date. More commonly, it will be that the employer's behaviour has breached the term of mutual trust and confidence that is implied into all contracts of employment. The term basically requires employers to refrain from conducting themselves in a manner that is likely to destroy or seriously damage the relationship of trust and confidence between employer and employee. Examples of such conduct may include isolating the employee, humiliating them in front of others and falsely accusing the employee of misconduct.
Constructive dismissal occurs where an employee terminates their employment in response to their employer's treatment of them. Although there has been no ctual dismissal, the treatment is sufficiently bad that the employee is entitled to regard themselves as having been dismissed.
Once you have joined UNISON and are a member, for the first 4 weeks of your membership you can access one session of union advice up to a maximum of half an hour in length, by telephone or email. If you have questions or concerns about Coronavirus you can access advice in this way, once you have joined. Please note, the rules of the union do not entitle new members to this – it is something the branch has decided to offer and is done so at its discretion. After 4 weeks, you’re entitled to the full support available to any member of UNISON, up to and including full representation in formal meetings and legal advice (unless this is for a ‘pre-existing issue’ – see below). It’s easy to join and will only take 2-minutes. The most popular way to join is online: JOIN ONLINE Pre-existing issues If you join in the knowledge that something has happened to you, or will happen to you, even after the 4-week qualifying period has expired if you subsequently seek the union’s support to deal with a pre-existing issue it will be limited to one half-hour advice session. Union membership is not something you can dip in and out of when events at work happen which you want representation and legal advice for. The union provides a huge range of membership benefits and makes a big difference to every aspect of your working life due to the work we do with employers negotiating on your behalf. Don’t wait for a problem – join today.
