What is constructive dismissal?

Constructive dismissal – also known as constructive unfair dismissal – occurs when your employer has treated you so badly that you’ve no choice but to resign. This can happen for contractual reasons, such as when you’ve not been paid, but it can also happen because you’ve been subjected to discrimination, victimisation or harassment in the workplace or if the trust and confidence in the employment relationship has fundamentally broken down.

If you believe that your position at work has become untenable, it’s often a good idea to talk to an experienced employment solicitor to find out if you may be able to resign and then bring a constructive dismissal claim. Alternatively, if you’ve already been forced out of your job, or unfairly dismissed in some other way, we’re always happy to guide and advise you.

What actions justify a constructive dismissal claim?

Unfortunately, many people find themselves in a position at work where they feel unsafe, harassed or bullied; sometimes by colleagues and sometimes by managers. When this happens and your employer doesn’t act to protect you, you may be entitled to resign and bring a claim for constructive dismissal. In fact, all of the situations listed below could lead to a constructive dismissal claim if your employer:

  • Hasn’t taken steps to stop people harassing or bullying you
  • Has demoted you without just cause
  • Has not paid you
  • Has made unreasonable changes to your working conditions
  • Failed to provide a safe working environment
  • Hasn’t provided you with the support you needed to perform your role
  • Withdrawn important benefits set out in your employment contract

As long as you’ve worked there for at least two years, you may be able to bring a constructive dismissal claim. However, this is clearly a big step, requiring substantial evidence, which should only be taken after careful consideration and as a last resort. In the first instance, you should speak to one of our friendly, specialist employment solicitors as soon as possible, ideally before you resign.

What is unfair dismissal?

If you’ve worked for an employer continuously for at least one year, you have a number of legal rights. These mean that you cannot be dismissed without a fair reason. Fair reasons in the eyes of the law include:

  • Capability: Where your health or abilities are not up to the demands of your role
  • Conduct: For example, where you’re consistently late, abusive to others or frequently absent
  • Redundancy: Where your role no longer exists or there’s a reduced requirement for a particular role of type or work, and you’ve been selected for redundancy based on fair criteria and a fair selection process
  • Breach of statute: For example, where an employee who needs to drive as part of their job is disqualified from driving, and if driving would likely have to be an essential or at least significant part of their duties.
  • Some other substantial reason: Which may include personality clashes with important clients or colleagues as well as reorganisation of a business

How do I claim for constructive unfair dismissal?

If you’ve had to resign because of unfair treatment in the workplace or have been unfairly dismissed, you need to act right away. That’s because you have only six months, less one day, You may choose to avail of mediation in the first instance. The aim is to try and resolve matters.

You should seek legal advice promptly and in advance of terminating your employment if possible.

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