Changing some element of an employee's job or their working conditions with the aim of forcing their resignation is constructive dismissal.
If a tribunal finds you guilty, you face a payout.
Let’s face it, your end of year financials will look a lot better if you don’t have to pay constructive dismissal compensation.
What constitutes constructive dismissal?
Common situations that lead to a claim for constructive dismissal include:
- Demoting your employee without warning them in advance.
- Forcing your employee to accept unreasonable changes to what their job asks of them. For example, you force someone on day shifts to work nights.
- Not paying your employee the agreed salary or benefits.
- Allowing other employees to harass or bully them.
- Victimising the employee.
- Forcing them to work from a new site without agreement.
Each one (or a combination) of these is grounds for constructive dismissal.
But just to be clear, you shouldn’t use these to force someone to resign because you want to get rid of them. It’s unlawful and none of those above reasons sound pleasant for anyone.
Fair dismissal is a formal process that you use in severe cases, such as after you’ve given someone warning to improve their conduct or performance.
Can anyone claim constructive dismissal?
A person must be an employee to claim constructive dismissal. Members of staff who are classed as workers, or self-employed, can’t make a claim.
Generally, the employee must have been with you for at least two years to make a claim. Their length of service includes whichever statutory notice period they qualify for.
Most employees will raise a grievance when they outline that they have a problem with your behaviour. You should record all grievances made against you in a formal manner as evidence for later.
Is there a constructive dismissal process?
The water gets a little muddy at this point. Your employee would need to prove—in most cases—that they did all they could before they felt they had little choice but to resign.
On the other hand, if the employee did not leave almost immediately after whatever you forced upon them, the tribunal might decide that by delaying, they accepted the situation.
The employee will usually need to take the following steps:
- Try to speak to the manager to fix the problem.
- If this fails, ask someone else in the management team to step in.
- If still no luck, they might seek legal advice or speak to their trade union.
- Finally, the employee will resign and begin a claim.
They won’t have to take these steps in all cases.
They have three months—minus one day—from the day that they resigned to file their claim.
Your employee must give hard evidence to prove the grounds for constructive dismissal. This could be proof of a contractual breach or evidence that you ‘seriously damaged’ the relationship between both parties.
What is my alternative to constructive dismissal?
Your first move is to take a step back and see the scenario from the employee’s point of view.
You or someone else in the business hired this employee. Replacing them would cost time and money.
Driving them out like this could also force team morale to plummet.
Rather than giving an employee the cold shoulder, would an open conversation help both parties to spot the problem and find a way to fix it?
You could outline your issue with their conduct or performance, or explain why you’re trying to change the terms of their contract, and reach an agreement to move forward.
By doing this, you’ll gain their loyalty and increase their motivation—and this might even make them produce better results.
Other types of dismissal
If you found this article helpful, you should about the other types of dismissal that you should avoid as an employer: