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In an employment situation a constructive dismissal arises in circumstances where there has been a fundamental breach (or repudiatory breach) of contract by the employer. The employee can leave their job on account of this behaviour and their resignation is treated by the courts as an actual dismissal by the employer.

A fundamental breach may occur when the employer:

  • reduces salary or other contractual benefits without the employee’s consent,
  • changes the nature of the job without consulting with employee,
  • transfers employees to alternative work locations with no contractual right or consent, or
  • humiliates staff in particular in front of other employees

To progress claims in the employment tribunal the ex-employee has to prove:

  1. that the employer committed a breach of an express or implied term of the contract of employment;
  2. the breach was sufficiently serious to justify the employee’s resigning in response to it, and that the employee did, in fact, resign in response to the breach (to be ‘sufficiently serious’ the breach has to be a fundamental breach which goes to the root of the employment contract); and
  3. the employee did not “affirm” (accept) the contract after the breach had taken place, for example by leaving it too long before resigning.

If the employee can prove there was a constructive dismissal, they may have claims of unfair dismissal and wrongful dismissal.

Contact us to discuss constructive dismissal.

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