What is constructive dismissal?

Making life hard for an employee isn't the best way to say goodbye

Some businesses find unique ways to ensure they can make an employee leave their organisation. This isn’t a legal approach and it can lead to serious consequences.

Let’s face it, your end of year financials will look a lot better if you don’t have to pay compensation.

So, we’re here to offer constructive dismissal advice and how your business can go about approaching employee relations in a consistent way.

What is constructive dismissal in the UK?

According to Acas, some element of an employee's job or their working conditions with the aim of forcing their resignation is constructive dismissal. If an employment tribunal finds you guilty, you face a payout.

To make this legal definition clearer, here are some constructive dismissal examples:

  • Providing an employee with an excessive workload so they’ll fail due to stress or an inability to complete tasks.
  • Demoting a manager without any agreement or explanation.
  • Harassing an employee.
  • Humiliating a member of your department in front of everyone else.
  • Changing a working environment so it disadvantages an employee.
  • Ignoring or failing to address any issues and grievances.

As you can see, there’s a pattern of ensuring a staff member receives unfavourable treatment in some way.

So, in short, what can be classed as constructive dismissal? Simply put, anything you do that makes a serious breach of your employee’s contract.

It’ll result in them resigning and can lead legal consequences.

What constitutes constructive dismissal?

Common situations that lead to a constructive dismissal claim 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 to be clear, you shouldn’t use these to force someone to resign because you want to get rid of them. It’s unlawful.

Remember, too, that some businesses mistakenly believe the term is “unconstructive dismissal”. This isn’t an employment law or HR term and is a misspelling of the term this guide is focussing on.

Can anyone claim constructive dismissal?

A person must be an employee to claim constructive dismissal. Members of staff you class 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 they have a problem with your behaviour. You should record all grievances made against you in a formal manner as evidence for later.

Addressing grievances properly will allow you to resolve issues at the outset and avoid constructive dismissal claims.

Is there a constructive dismissal process?

Your employee would need to prove—in most cases—they did all they could before they felt they had 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:

  1. Try to speak to the manager to fix the problem.
  2. If this fails, ask someone else in the management team to step in.
  3. If still no luck, they might seek legal advice or speak to their trade union.
  4. Finally, the employee will resign and begin a claim.
  5. 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 resignation?

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 you should avoid as an employer.

  • Unfair dismissal: It’s the termination of a contract of employment for unfair or unacceptable reasons, including failing to follow the correct procedure.
  • Wrongful dismissal: This is a situation where a termination breaches the terms of your employment contracts or an employment law rule.

Looking for advice on constructive dismissal?

If you need help on often difficult to deal with topic, you can speak to us for immediate assistance: 0800 783 2806.

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