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Constructive Unfair Dismissal
Constructive unfair dismissal occurs when an employee resigns and issues a claim alleging that the employer has acted in such a way as to so fundamentally breach the employment contract that it is impossible for the employee to continue working for them.
The statutory definition is found in Section 95 (1) (c) of the Employment Rights Act 1996 which provides:-
“an employee is dismissed by an employer if ….
(c) 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”.
The employee in such circumstances often relies on the implied term of “mutual trust and confidence”.
Employees who resign and seek to claim this without first raising a grievance enable the employer to defend this by saying that they were unaware of the employee’s feelings and that if a grievance had been raised, they would have looked into it and dealt with the matter, thus making the employee’s actions precipitous.
Statistically, constructive unfair dismissal claims are the hardest of all for an employee to succeed at in an Employment Tribunal because the burden of proof is reversed in constructive unfair dismissal cases in that the burden is on the employee to show that there was such a fundamental breach of contract that it was impossible for them to carry on working, whereas, in a normal unfair dismissal, the burden is on the employer to show that there was a fair reason for dismissing the employee. The employer also has the opportunity in their defence to show that there would, in fact, have been a fair reason for dismissal.
The same rules with regards to the length of service apply as in traditional unfair dismissal cases.
It is sometimes possible in cases of constructive unfair dismissal, especially where an employee has not raised a grievance before resigning for the employer to seek either a strikeout or a deposit order for the Claimant to continue with their claim.