Constructive Dismissal
In some cases, an employee may feel they have no choice but to resign from their job due to intolerable working conditions. This is known as constructive dismissal, and it can be grounds for a wrongful termination claim against their employer.
To be found to have been constructively dismissed, an employee must demonstrate that their employer committed a serious breach of their employment contract. This is also referred to as a repudiatory breach of contract, and it is a high bar for an employee to jump in order to succeed in this type of claim.
The breach must be so severe that it forces the employee to resign. The most common breaches are material changes to an employee’s powers or duties, or a decrease in their overall salary and status at work. This can include reducing the authority of a plant superintendent to yard foreman, or limiting a senior accountant’s responsibilities to payroll processing. Other breaches may involve removing key equipment, or changing the location of an office, or a change to shift patterns.
An employee must also show that they attempted to resolve the situation by communicating their concerns with their employer, or by seeking resolution through internal channels. This is a critical factor in constructive dismissal claims, as it shows that the employee took reasonable steps to avoid resigning from their position until they were forced to do so by their employer’s actions. In addition, the employee must demonstrate that they resigned promptly after the breach occurred, which can further establish the link between the employer’s behaviour and their decision to leave.
Constructive Dismissal in Contracts
A claim for constructive dismissal requires a strong case, and around only 5% of cases that make it to an employment tribunal are successful. Some employers will retaliate against employees who raise issues about discrimination, harassment, whistleblowing, or worker safety violations, but these types of claims are protected by whistleblower laws.
In these types of circumstances, an employee may wish to consider speaking with an experienced employment lawyer about their rights. An attorney can evaluate the evidence in a case, and explain how an employee might be successful in their claim. Often, an employee will be able to negotiate a settlement with their employer in return for a severance payment. This can help them to avoid legal action altogether and save time and money.
However, it is important to note that even if an employee successfully argues their case at an employment tribunal, they cannot be guaranteed to receive compensation from the employer. This is because the law states that only those who can prove their employers breached their employment contracts are entitled to compensation. This can be a difficult hurdle for employees to overcome, and it is important to seek legal advice early in the process.
Employment laws regarding constructive dismissal protection vary by jurisdiction, but they typically aim to provide employees with recourse when faced with unacceptable working conditions. In many countries, if an employee can prove constructive dismissal, they may be entitled to compensation for lost wages, benefits, and potentially damages for emotional distress or other hardships caused by the employer’s actions.