Constructive Dismissal

Constructive Dismissal

Constructive dismissal is not technically a dismissal at all. You may have been constructively dismissed if your employer has not dismissed you, but you have resigned,  if you can show that you were entitled to do so by virtue of your employer’s conduct towards you.

In essence, if your employer has acted in such a way, either through some continuous conduct or a one off act, which has left you feeling that you had no other choice other than to resign, you may have been constructively dismissed.

If you can show that you have been constructively dismissed you can claim for unfair dismissal.

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Constructive Dismissal Legislation

(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) … only 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.”

What do you need to show to claim for Constructive Dismissal?

  1. To demonstrate that your employer is guilty of conduct which is a significant breach going to the root of your contract of employment, or which shows that your employer no longer intends to be bound by one or more of the essential terms of the contract;
  2. You elect to accept the breach and treat your employment contract as terminated. In response to which, you must resign from your employment; and
  3. You do not delay too long in accepting the breach.

What is a significant breach of a contract of employment?

As it is necessary to establish a significant breach of your employment contract by your employer in a constructive dismissal claim, it is important to understand what a fundamental breach is.

Essentially, the breach of contract must be regarded as “repudiatory” in order for you to bring a claim for constructive dismissal. This means that the breach of contract is of sufficiently serious character to enable you to treat the contract as terminated and to sue for damages. Examples of conduct that have resulted in a “repudiatory“ breach of an employment contract include:

  • An employer breaching the relationship of trust and confidence with it employee, by undermining them and making humiliating comments in front of colleagues;
  • An employer refusing to pay wages; and
  • An employer refusing to pay holiday pay.

How much can you claim for?

The amount of compensation awarded for a constructive dismissal claim is calculated in the same way as a claim for unfair dismissal.