Employees Constructive Unfair Dismissal

A constructive unfair dismissal claim can arise where there has been a serious breach of contract by an employer.

What might amount to a constructive unfair dismissal claim?

All claims should be assessed on their own merit, however, examples might include an employer’s failure to provide a safe working environment or not looking into a grievance which has been raised.

Should I raise a grievance?

Many problems can be resolved at an early stage and so a formal grievance will be unnecessary.  Raising a formal grievance can be very stressful and so an early resolution can avoid the anxiety associated with it and also preserve the employment relationship.  However, where this is unsuccessful or inappropriate, a formal grievance will usually be raised.

Can I just resign and issue a claim of constructive unfair dismissal?

It is anticipated that an employee will exhaust the grievance process before resigning or outline in a resignation letter clearly the reasons for leaving.  Where there has been a serious breach of contract, an employee may resign immediately without working a notice period and although this may constitute a breach of contract, it could be justified in some circumstances.  Failure to document the grievance may result in a percentage increase in an award if a claim is successful at an employment tribunal and we recommend that legal advice is always obtained before resignation.

There are strict timeframes for issuing claims (and eligibility requirements) and there is a mandatory requirement to formally appoint ACAS (the Advisory, Conciliation and Arbitration Service) before a claim is issued at an employment tribunal.  This is to enable the parties to resolve the issue by means of conciliation before litigation.

My employer has asked me to enter into a Settlement Agreement?

An employer may ask an employee to enter into a Settlement Agreement (formerly known as a Compromise Agreement).  This is a confidential document that will prevent an employee from pursuing their employment rights in return for a financial settlement.  It is a requirement that an employee seeks legal advice and usual for an employer to contribute towards the associated costs.  Some employees prefer to pursue a Settlement Agreement rather than to incur the time, cost, risk and stress associated with litigation.  It will ultimately be for an employee to decide which avenue to pursue.