Constructive dismissal can occur where the employee leaves their job due to the employer’s behaviour.
An employee is entitled to resign and claim constructive dismissal only if:
i) The employer’s actions are a serious breach of contract (an employer who is merely acting unreasonably is not necessarily in breach of contract);
ii) The employee responds quickly; and
iii) The resignation is obviously related to the employer’s conduct
The behaviour of other employees can also be grounds for constructive dismissal where the employer has not taken reasonable steps to prevent their behaviour.
When this happens the employee’s resignation is treated as a dismissal by the employer, so the employee can claim unfair dismissal, wrongful dismissal and, if appropriate, a redundancy payment.
Examples of constructive dismissal
An employee can resign over one serious incident or due to the build up of a number of small incidents, the last of which triggers the resignation (even if the last incident in itself is not a serious breach of contract). Where the resignation follows on from a ‘last straw’ incident, the employee will probably claim that the employer is guilty of a breach of the implied term that the employer must not, without good reason, act in such a way as to damage a relationship of trust and confidence with the employee.
The employee must resign soon after the incident in order to be able to rely upon it as being the effective cause of the end of the contract. If there is a long delay then the employee may have 'accepted the breach' and lose their right to rely on it to end the contract.
Just how long the employee can delay their resignation while they try to negotiate with the employer, or find alternative employment, is always a matter of the facts of the situation. What is important is whether, by continuing to work, the employee’s conduct demonstrates that they had decided to continue the employment relationship, notwithstanding the employers breach of contract. In reality, this is likely to be a very short period, or time, often only a week or so.
Working under protest
Sometimes employees will indicate that they are working “under protest”, but that will not give them an indefinite right to rely on the breach of contract if they resign several weeks later.
Link to unfair dismissal
A finding that an employee was constructively dismissed only proves that they were dismissed; it does not automatically prove that the dismissal was unfair (or wrongful, or on grounds of redundancy). The employee has to go on and prove that the dismissal was unfair. If the constructive dismissal is connected to one of the automatic categories of unfair dismissal (eg pregnancy) it will be simple to prove that it was unfair. Otherwise the tribunal will have to be convinced that it was not reasonable for the employer to have acted in such a way as to cause the employee to resign.