Career Doctor Articles
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
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.
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.
an employer dismisses you, you have the right to claim
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.
course if these actions were taken by the company against
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
general, if your employer takes some action against you
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.
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
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
WHAT ARE THE COSTS?
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.
financial costs can be very substantial. If you do hire
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
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
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.
Career Doctor is Eric Hearn, Chartered MCIPD and Managing
Director of Milverton Career Solutions Ltd, Ascot, Berkshire,
Tel: 01344 624383