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Ask Employment Law |
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Remember: There is no substitute for legal advice on the actual
situation you find yourself in. The information posted on this site is for
general information only, is based on |
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Question: |
Should I claim constructive unfair dismissal
so I can bring a Tribunal claim?
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Answer: |
Frankly,
constructive unfair dismissal claims are often difficult to win. I personally
think it’s frequently better for an employee to raise possible constructive dismissal
claim to negotiate an agreed severance, rather than resign, lose an income,
and risk an uncertain outcome in the Employment Tribunal months down the
line. If
you’re wondering what constructive unfair dismissal is, it’s when the
employee resigns in response to a breach of an express or implied term or
condition of employment by the employer. This is nothing if not a complex
area of law, fraught with difficulties, but in general terms In order for an
employee to be able to claim constructive dismissal, four conditions need to
be met: ·
There must be a breach of contract by the employer. This may be
actual or anticipatory. ·
The breach must be sufficiently serious to justify the employee resigning,
or else it must be the last in a series of incidents which justify leaving. ·
The employee must leave in response to the breach. ·
The employee must not delay too long in terminating the contract
in response to the employers breach, otherwise s/he may be deemed to have
waived the breach. If
the employee hasn’t been paid for the last three months, this is almost
certainly going to be grounds to resign and claim constructive dismissal. In
the bulk of cases, it’s rather less clear cut. Often employee’s will rely on
breach of the implied term of ‘trust and confidence’ which underlies all
employment relationships. There may be a one off breach, or a series of minor
breaches over time which cumulatively destroy the employment relationship. It
is generally sensible for the employee to raise any such concerns in writing
with the employer prior to taking any further steps such as resignation. See
also what you might get if
you win an unfair dismissal claim Last
updated: July 2010 |
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Employment
Solicitor Reculver Solicitors Tel
0207 324 6271 Regulated
by the Solicitors Regulation Authority ©
Reculver Solicitors. 2005- |
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