Constructive Dismissal

Constructive dismissal is different to a regular dismissal by an employer terminating a contract of employment with an employee. An employee may be considered to have had a ‘constructive dismissal’ where the employer does not dismiss the employee but the employee terminates the contract of employment by resigning and can demonstrate that they were entitled to do, so based on the employers conduct.

The statutory definition is contained in s95(1)(c) of the Employment Rights Act 1996 that states:

(1) “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 employers conduct”

In order for a claimant to succeed in a successful action for constructive dismissal the employer must be in what is known as a ‘repudiatory’ breach of the contact of employment. This means the employer must be guilty of a breach of the express or implied terms of the contract. The breach may be in relation to a one-off act or a course of conduct that continues over a period of time that cumulatively leads up to a breach of the implied term of trust and confidence (the ‘last straw doctrine’).

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