Employment Law Advice Birmingham Law Solicitors Birmingham

Sometimes an employee resigns from his/her employment because of his/her employer's conduct towards him/her. This is called constructive dismissal, and the law treats the resignation as a dismissal if the employer's conduct was a fundamental breach of contract.

As a general rule, in order to succeed in a claim for constructive (unfair) dismissal the employee must show that he/she resigned in response to a fundamental breach of contract by the employer. This breach can be a serious one-off incident such as refusal to pay wages, or alternatively, a series of smaller breaches with a final incident that 'breaks the camel's back' and prompts a resignation.

The burden of proof is on the employee to show that he/she resigned in response to a breach of contract so severe that he/she could not have been expected to continue working there any more.

The employee must resign immediately after the breach has occurred as to delay doing so could be seen in law as an acceptance of the breach. As a general guideline, an employee should normally resign within about a week, although circumstances can vary enormously.

What amounts to a constructive dismissal is complex. Anybody contemplating resigning from their job because of their employer's conduct towards them should seek expert advice before taking any such action. It is also important to note that just because an employee has been constructively dismissed; it does not necessarily mean he/she has been unfairly constructively dismissed.

Unfair Dismissal

Unfair dismissal is where an employee has been dismissed by his/her employer and claims that the dismissal was unfair.

In order to bring an unfair dismissal claim in an Employment Tribunal a person must satisfy the following:

He/she must be an employee (rather than self-employed or, in most cases, working through an agency)

He/she must normally have at least one year's continuous employment

He/she ordinarily works in the UK

He/she is within the 3 month time limit for bringing the claim to the Employment Tribunal

When faced with an Unfair Dismissal case the Tribunal would have to look at two issues. First the employer would need to show that the principal reason for the dismissal was a potentially fair one. There are five potentially fair reasons in law:

Capability;

Conduct;

Redundancy;

Legal obligation to end employment (for example, where a driver loses his driving licence)

Some other substantial reason (SOSR), such as a clash of personalities, business reorganisation;

On the assumption the Employer could show this, the Tribunal would then have to decide whether the employer acted reasonably in relying on the selected fair reason as a sufficient reason for dismissing the employee. The Tribunal would take various things into account when doing this, such as the size of the employer and its resources. It would also consider the 'band of reasonable responses' test, which looks at whether the response of the employer fell within a band of reasonable responses of a reasonable employer having carried out a reasonable investigation.

If after analyzing all the facts and applying the relevant law the tribunal thinks that no reasonable employer would have dismissed for the offence, the dismissal will be unfair. However, if the Tribunal decides that some employers might have dismissed in those circumstances, the dismissal will be fair.