Elements of Constructive Dismissal
There are three fundamental elements to constructive dismissal, which can be seen as separate legal rules to the actual employment legislation. These laws deal with the employer having a ‘duty of care’ and having a legal duty to make a dismissal for the ‘principal reasons’ that justify this. It is important for any employee to know and understand these three basic elements of constructive dismissal to avoid being unjustifiably dismissed for what are seen as minor contractual disputes that do not warrant any form of disciplinary action.
The first element to a successful claim for constructive dismissal is that there has been a fundamental breach of contract between the employee and the employer. It is considered a fundamental breach when an employer does something that goes against the rules laid down by the employment tribunal during the term of the contract. The employment tribunal may rule that the employer has not taken reasonable steps to make sure they comply with the rules, or that the employee did not reasonably believe that they were being treated reasonably.
When the employer breaches the contract and this result in the employee terminating their employment, they are said to have ‘breached the contract’ and this results in the employee being entitled to a breach notice. This notice gives the employer 14 days in which to rectify the breach and put the matter right. If the employer does not comply with the notice or does not rectify the breach within the time allowed, the employee can appeal to the employment tribunal. If the appeal is successful, the tribunal has the power to make the employer to pay compensation for the breach.
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Fundamental elements to constructive dismissal
Another element of a successful case for constructive dismissal is that it is clear to the employee that a breach has occurred. The employer must be able to point to specific examples where this has occurred. It is important that if this is not the case, for example if there was a constructive dismissal in a written contract, the employer must still show that the employee has breached the contract. To be able to show this, the employer must show that there are concrete examples of the breach. This can be done by way of a series of tests.
If the court found that the constructive dismissal was unlawful then an amount has to be paid in damages. In addition to this, the employee will also have to pay any costs that arose out of the court finding. If the employer fails to take action to rectify the breach before the agreed time period is up, the employee can apply to the Employment Tribunal for a statutory declaration that the contract was breached.
An employee cannot be simply forced out of their employment without just cause. An employer must take action to rectify a situation where they have failed to take reasonable steps to correct the problem. The employer has to make their position clear to their staff and show them what the consequences of a breach are. If the employer fails to take action then the employee has a right to appeal to the Employment Tribunal. If the employer is not able to demonstrate that they were exercising due diligence or did not take reasonable steps to rectify the breach, the employee may well have the ability to claim back any costs up to a period of twelve months.