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Many employees can often feel that the workplace they’re in causes stress through many factors that ultimately result in them feeling entitled to resign. However, what many people don’t realise is that, if certain criteria are met, they may be able to claim for constructive unfair dismissal.

What criteria must be met for constructive dismissal?

If you have two years’ continuous service with your employer, in order to claim for constructive dismissal you must meet three basic criteria:

  • There must be a  breach of contract by your employer that’s already occurred or is about to occur;
  • You must resign in response to this breach;
  • You must resign soon after your contract has been breached.

So, what does each criterion really mean?

The first point essentially means that your employer’s (or someone employed by your employer’s) conduct, breached an express fundamental term in your contract. This doesn’t mean that the breach of contract must have happened before you resigned; the breach of contract may have just been planned. When this occurs, it’s known as an anticipatory breach. Examples include refusing to pay overtime after you’ve worked the overtime; reducing your pay without your consent or fundamentally changing your duties without your consent. This has even occurred in sport: in Gibbs v Leeds United Football Club Ltd, Nigel Gibbs  wasn’t allowed to contact the main team, despite being the assistant manager and was made to work with the under 18s and under 21s instead. This was found to be loss of status, to the extent that Leeds United had fundamentally breached Mr Gibbs’ contract.

Mutual trust and confidence

In other cases, your employer’s conduct may not have caused a breach but it did destroy or seriously damage an implied term. The most commonly occurring example of this is what’s known as a breach of the ‘implied term of mutual trust and confidence’. Every employment contract is imbued with this term, which is why it’s so frequently relied on. The most common way in which it’s breached is poor employer conduct, such as unacceptable verbal abuse by a manager or other bullying, but it can also include issues such as failing to treat a long-serving employee with dignity, failing to treat allegations of sexual harassment with sufficient seriousness or falsely accusing an employee of serious misconduct. However, the breach must be so serious that your employer must be considered to have acted in a way that’s calculated to breach the trust and confidence inherent in every employment relationship.

When an express term is relied upon, your employer, in some cases, may have only breached the contract in a very small way, such as paying you late by a week or so. However, if this happens on several occasions and you leave because of this, then the ‘last straw’ doctrine could be relied on. This is where a final act has occurred. In this case, the final act may not be of the same quality or type as the previous breaches but it (in conjunction with the previous breaches) contributes enough to cause you to resign.

Resigning in response to a breach

The second bullet point means you resigned (either personally or otherwise) because of the breach of contract. There’s no requirement for you to raise a grievance with your employer before resigning but it’s often incredibly useful to do so, as it can be used as evidence later on and, if reconciliation is possible, it can assist in the repair of a damaged relationship.

Resigning soon after the contract has been breached

The final point means that you must resign shortly after the breach occurs, so as to ensure that you do not affirm or accept the breach of contract, which will result in the loss of the claim. However, you can only have affirmed the contract from the time you knew about the breach and you’re likely to be able to still claim if you gave your employer time to remedy the breach or think about your own resignation. The Employment Tribunal will generally not criticise you for allowing time to rectify an issue, as long as the time allowed for the process is relatively short.

For more information about your employment rights or claiming for constructive dismissal, please contact our employment law team by emailing Employment Law Partner David Leslie at [email protected] or calling 0113 368 7804.