Handling constructive dismissal effectively in the workplace
Managing personnel is one of the most essential tasks that an employer has to handle. If you mismanage the dismissal of an employee or neglect to do so, you can be liable to a whole range of legal claims, including constructive dismissal. Constructive dismissal is a term that describes a situation where an employee is forced to leave a job because the working conditions have become so intolerable that they feel that they have no option but to resign.
In our blog this month, we look at an introduction to constructive dismissal, how you can handle disagreement to avoid claims and court proceedings and what to do if a claim arises.
The difference between unfair dismissal, constructive dismissal and wrongful dismissal
Every employee that comes into your business has employment rights as a member of staff. Some of these rights apply immediately, and others become applicable after the employee has worked for you for a certain amount of time.
Before we take a look into constructive dismissal and how it may come about, we need to define the various terms used when discussing conditions of employment and potential claims.
Unfair dismissal – This is where an employer terminates the employees’ contract without a concise reason to do so. An employee can also claim unfair dismissal if the employer had a valid reason but mishandled the dismissal.
Constructive dismissal – An employee may be entitled to claim constructive dismissal if an employer changes their employment or working conditions to force the employee into resignation.
Wrongful dismissal – If the employer terminates an employees contract of employment and the termination has breached one or more of the terms of the contract, an employee may be able to claim wrongful dismissal.
Employer failures that could lead to a constructive dismissal claim
Constructive dismissal is when an employee resigns following an incident of profound dissatisfaction in their job. When the employer has breached an implied term of an employment contract, the employee may find it is impossible for the employee to continue working there. But there are ways to handle it effectively in the workplace to avoid claims and court proceedings.
If an employee feels they have a claim for constructive dismissal, they may seek to take legal action against their employers to resolve the situation. This can be an expensive and stressful process, which is one reason why employers should be aware of the actions that can lead to a resignation. Constructive dismissal can be difficult for employers to deal with, as they are legally obligated to compensate employees for wrongful dismissals. For this reason, employers should always ensure they are working in line with policies and procedures underwritten for their business to ensure they can either avoid constructive dismissal claims or have evidence to prove they were acting correctly.
Below are some common examples claims for constructive dismissal are brought to court:
Changes in a contract without discussion or warning could include changes to pay, working hours, and previously received company benefits (such as a car).
Demoting without discussion or warning – demoting an employee without discussion, warning or exploring other options can be a common reason the employee wins constructive dismissal cases.
Changes to workplace policies and procedures forcing employees to work in a dangerous environment – asking your employees to work when you are in breach of health and safety laws and changing policies to suit the business rather than protecting your employees can lead to claims being brought against you.
Situations where your dismissal is likely to be unfair:
In the case of employees wondering whether they have a potential claim for constructive dismissal, below are some common examples of where your dismissal is likely to be unfair:
- If you have asked for flexible working and it has been denied for either no reason or a reason, that may not be deemed acceptable.
- If you have refused to give up your working time rights and have then been dismissed for this reason
- If you took part in legal industrial action that lasted 12 weeks or less
Seeking legal advice for constructive dismissal claims
Constructive dismissal is a tricky business to manage, especially when it comes to handling employee claims. If you have had a constructive dismissal claim come through from a previous employee, and if you don’t have evidence to prove that the claim is incorrect, you could be faced with paying a compensatory award or settlement agreements to your employee. Claims that move through to court proceedings are often considered a high-risk strategy for employers and can be an expensive matter to handle for both parties involved. To avoid a claim and court proceeding, it is crucial to handle constructive dismissal carefully and to ensure you are receiving professional advice from employment law specialists like Herries-Smith solicitors.
As an employment law specialist, when you choose to work with Herries-Smith, you will be receiving practical expert advice in a manner you can understand – we won’t fill your head with jargon that you don’t understand. After reviewing your situation and paperwork, we will offer relevant legal advice, explain your legal rights, and offer you legal representation if we feel you can take this matter further. As always, if you choose for us to remain in the background whilst you handle the claim firsthand, we will work in your best interests.
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Herries-Smith – your compassionate and approachable employment law solicitor
With over 25 years of experience, including a law degree and a postgrad diploma in employment law, we have the knowledge, skills and expertise to support you with your employment disputes and employee claims. Whether you are an employer seeking advice regarding a claim or an employee who feels they may have a case against their employer, we work in the client’s best interests. We support and help them achieve the best outcome. We won’t pass you on to a junior once your claim has been reviewed – you will stay with an experienced solicitor throughout your case.
If you are looking for legal advice without the wordy jargon, contact Herries-Smith employment law solicitors today and see how we can help you and your claim.