Career Doctor Articles

With the kind permission of the Career Doctor, jfo is able to bring you a series of articles to help you in your work situation and longer term career management

Constructive dismissal

Quite frequently I get people come to my office and claim that they have been constructively dismissed by their employer – and it is clear from what they tell me that the great majority do not fully understand what constructive dismissal means. So in this article I will endeavour to outline what is entailed, what to do if you think you are in a constructive dismissal situation, and what the risks are to you.

LEGAL DEFINITION

In general, if your employer treats you in such an abominable way that you feel unable to continue in his / her employment, you can tender your resignation, and in that letter tell your employer that you intend to lodge a claim with an Employment Tribunal for constructive dismissal.

If an employer dismisses you, you have the right to claim that dismissal was unfair – but to claim constructive dismissal you have to resign first. As I stated in a previous article, to be eligible to lodge a claim against your employer with an Employment Tribunal, you must have worked for that employer for at least one year, although there are exemptions against this qualifying period if the reasons for your claim are concerned with sex, race or trade union membership.

So what constitutes grounds for claiming constructive dismissal? The classic rule is that the action your employer has taken against you has gone to the root of your contract with the company. So if your pay is cut, your role is downgraded, or your company car is taken away, you could argue that these actions have gone to the root of your contract, leaving you no option but to resign.

Of course if these actions were taken by the company against everyone doing the same job as you, as part of a negotiated reorganisation, then this could be viewed as “fair” constructive dismissal and you would probably lose your claim.

The second reason that sometimes works in constructive dismissal cases is “the straw that broke the camel’s back” principle. This means that over a period of time your employer has done some unpleasant things to you, and the last thing that he / she did was that straw which prompted you to resign and claim constructive dismissal. Each of these unpleasant things may not have “gone to the root of your contract”, but collectively they have accumulated to make life so unpleasant for you that you had no option but to resign.

WHEN TO RESIGN

In general, if your employer takes some action against you that has either gone to the root of the contract, or was the straw that broke the camel’s back, then you must tender your resignation fairly swiftly. If your pay is reduced and you continue in your job, working to the lower salary, then you will be seen as having “accepted” the lower salary, and your case will probably fail if you lodge a claim for constructive dismissal some time after the event.

In my role as a career consultant I have had a number of clients in circumstances where a claim for constructive dismissal is an option. I discuss the costs (see below) with the client and if such a claim is the preferred option I put considerable effort into drafting his / her letter of resignation, so that there is no ambiguity about my client’s reasons for resignation.

One thing is very important. If you do lodge a claim for constructive dismissal, do so with the intention of seeing it through to the end, and not just to give your old boss some grief. If you withdraw your claim after formally lodging it, your former employer may be entitled to claim his costs from you. And you won’t want a bill for his legal costs!

Of course it is dangerous for me to generalise about the law in a short article such as this, because each case will be seen on its own merits. So if in doubt, contact your trade union, ACAS, the CAB, or a solicitor who specialises in employment law.

WHAT ARE THE COSTS?

Without doubt the biggest cost to anyone claiming constructive dismissal is the sheer pressure and stress bringing such a claim entails. There are forms to be completed, delays whilst your employer responds to your claim, dealing with the wounding things that will inevitably be claimed against you. Receiving solicitor’s documents and trying to respond to them. Endless meetings and phone calls. And the fear about attending a tribunal and being grilled by a lawyer who will be out to make you look small – and of seeing your case in the local newspaper

This emotional pressure will sap the will of the most determined of people, especially as the whole process may take up to six months until your case comes up.

The financial costs can be very substantial. If you do hire a solicitor they can cost between £150 to £200 an hour, and a barrister will cost you a lot more than that! So the overall financial cost can be very high indeed.

Finally there is the cost of all this on your career. Because the legal process will take some time, you will almost certainly have to look for another job straightaway. Remember that you have just resigned from a job, with no other job to go to, so an astute interviewer will soon draw out from you that you are claiming constructive dismissal from your previous employer.

Believe me, in all my years of conducting recruitment interviews, if a candidate mentions anything about taking his former employer to a tribunal, the shutters come down, and the managers lose interest immediately. To be fair, that’s not hard to understand, for you will be seen as a possible trouble-maker. “No smoke without fire” and all that. “What’s his manager’s view?”

Finally, just look at the statistics of claims for constructive dismissal. Your local ACAS representative will tell you that the great majority of claims for constructive dismissal fail, and in the ones that do succeed, the claimant is usually only awarded a few thousand pounds. Hardly worth the risk unless you are wealthy, tough, single-minded, and have a skin like a rhinoceros. Look to the future and chalk it up to experience!

Although having said that, I have been very instrumental in turning these circumstances round on many occasions, and helping my clients deal with an unpleasant work situation constructively and, occasionally, profitably.

Good luck!

The Career Doctor is Eric Hearn, Chartered MCIPD and Managing Director of Milverton Career Solutions Ltd, Ascot, Berkshire, UK.

Contact details:
Tel: 01344 624383
Email: milvertoncareers@btconnect.com
Website: www.careerdevelopment.co.uk