What is the Claims Process for constructive dismissal?
To make a claim, you must have been employed continuously for a period of 2 years in order to put forward a claim. If you are under this timescale however, please do get in touch as you can make a claim for discrimination even if you have been employed for less than 2 years.
It is recommended by ACAS code of practice that employees should lodge a formal grievance against their employer before taking steps to resign. This is to give your employer a chance to resolve the matters at hand. If you do not lodge a formal grievance before resigning then any damages awarded to you at the employment tribunal can be reduced by up to 25%.
When you do resign, it is preferable to specify why and state that you are claiming for constructive dismissal.
There are very strict timescales for making a claim. Ordinarily, the time limit is three months, less one day, from the date of the termination of employment. It is, therefore, important that you seek legal advice as soon as possible so that your claim can be adequately prepared, and proceedings commenced, within the required time period.
Michael Lewin Solicitors are experts in compensation claims for constructive dismissal, and can advise you through the legal issues surrounding such claims. We have created a detailed legal guide to these claims at the bottom of this page.
Constructive dismissal claims are pursued in the Employment Tribunal rather than the Civil Courts. It is necessary to register your claim with ACAS under the Early Conciliation scheme prior to commencement of proceedings in the Employment Tribunal.
Michael Lewin Solicitors are experts in dealing with compensation claims in the Employment Tribunal. We usually offer a ‘No Win, No Fee Agreement’ (sometimes called a Damages-Based Agreement). Additionally, we are able to provide insurance to cover the cost of the Employment Tribunal fees.
Constructive Dismissal: The Law
Under s.95(1)(c) of the Employment Rights Act 1996, an employee is considered to have been dismissed by their employer if:
‘the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct’.
This allows an employee to treat himself as dismissed if the employer has acted in such a manner that could be deemed to have ‘fundamentally’ breached the employment contract.
In order to pursue a constructive dismissal claim, you must have been employed for two continuous years.
In a claim for constructive dismissal, it is necessary for an employee to prove that the employer has acted in a manner which amounts to a ‘fundamental’ breach of contract.
Whether an employer’s conduct amounts to a fundamental breach will depend on the circumstances of each case. Examples of what can constitute a fundamental breach include:
- Bullying at work;
- Failure to pay wages (this could also give rise to an unlawful deduction of wages claim);
- An assault at work;
- Failure to investigate a grievance or complaint.
These are just examples of what could constitute a fundamental breach, and each case must be determined on its own merits. Trivial breaches of policies or procedures are unlikely to be sufficient to amount to a fundamental breach.
An Employee’s Response to a Fundamental Breach
In order to claim constructive dismissal, an employee must demonstrate that they considered the breach by their employer to be so serious, and so fundamental to the employment contract, that they could no longer continue in their employment.
It is necessary for an employee to respond to the breach with ‘immediate’ termination of the contract. If an employee delays in terminating their contract, then it is possible that an Employment Tribunal may consider that the employee has accepted the breach, and their claim could be unsuccessful.
Previous case law differs as to the length of the time that an employee should take to terminate the contract. As a starting point, termination should take place within seven days of the breach. Although, there are cases where employees have taken longer than this to terminate their employment, and these cases can be successful in exceptional circumstances.
Duty to Mitigate
As in all employment compensation claims, an employee must demonstrate that they have made a genuine attempt to mitigate their loss by seeking alternative employment after their previous employment was terminated.
During the course of Employment Tribunal proceedings, it will be necessary for the Claimant to produce evidence of any job applications that have been made, and evidence of any other attempts to mitigate their losses. It is, therefore, essential that records are kept of any attempts that are made to find new employment.
Constructive dismissal compensation claims must be registered with ACAS, for Early Conciliation, within three months (less one day) of the date of the termination of employment. If this deadline is not met, then the claim will likely be out of time.
As claims for constructive dismissal are time-sensitive, it is vital that you keep a record of key dates, and hold onto any paperwork you may have in relation to your employment and the claim.