I receive a lot of enquiries from disgruntled employees looking to take their employers to an employment tribunal for constructive dismissal.
Constructive dismissal is very hard to prove.
Employees must show that there was a fundamental breach of contract by the employer that leads to a breakdown in trust and confidence. They must then show that the decision to terminate their employment was in response to the breach.
The grievance procedure should always be pursued first before terminating their contract.
When hearing a case of constructive dismissal an employment tribunal will consider the Western Excavating Test derived from Western Excavating Ltd v Sharp 1978 case law:
“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct.”
The employment tribunal panel will have to decide whether a dismissal has taken place then will consider the fairness of that dismissal.
A case that I successfully represented recently involved an employee complaining to her employer about the struggles she was having with her job that had been going on for months.
The employer wrote back to her advising her to get on and do her job otherwise they would be dismissed or alternatively they could choose to resign. At the time the employer was unable to offer any work to the employee.
The employment tribunal panel decided that the employee had been unfairly constructively dismissed.
Sandra Beale is an HR consultant at SJ Beale HR Consult.
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