Constructive dismissal is one of the most commonly misunderstood areas of employment law. Many people believe that if their employer makes their life difficult enough, they can resign and claim unfair dismissal. The legal test is more specific than that, but where it is met, constructive dismissal is a powerful claim.
Constructive dismissal occurs where your employer has committed a repudiatory breach of your contract of employment, you resigned in response to that breach, and you did so without delay. All three elements must be present. A repudiatory breach is a serious breach that goes to the root of the contract, entitling the innocent party to treat the contract as ended.
The most commonly relied-upon implied term is the duty of mutual trust and confidence: the employer must not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. Conduct that crosses this line includes a sustained campaign of bullying, demoting an employee without justification, unilaterally reducing pay or changing contractual terms, failing to protect an employee from harassment, and making unfounded allegations of misconduct in a disciplinary process.
Where no single act is serious enough to amount to a repudiatory breach on its own, a series of acts can cumulatively undermine trust and confidence to the point of repudiation. The final act in the series, sometimes called the last straw, need not be serious in itself. It simply needs to be the act that tips the balance. However, the last straw must not be entirely trivial and must be related to the series of conduct relied upon.
Once you become aware of a fundamental breach, you must resign within a reasonable time. If you continue to work for a significant period after discovering the breach, the courts may find that you have affirmed the contract and lost the right to treat yourself as constructively dismissed. What counts as a reasonable time depends on the circumstances, but delay of months after the triggering event is risky.
Yes, for an ordinary constructive dismissal claim you need two years of continuous employment. The exception is where the reason for the constructive dismissal itself falls into one of the automatically unfair categories, such as whistleblowing or asserting a statutory right, where no qualifying period is needed.
Constructive dismissal requires a repudiatory breach of contract by the employer, resignation in response to that breach, and resignation without delay. The duty of mutual trust and confidence is the most commonly breached implied term. Cumulative conduct can amount to a repudiatory breach under the last straw doctrine. Two years of qualifying service is needed in most cases. An employment law barrister can assess whether the test is met on your facts.
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