What would be a 'fundamental' breach of contract?
Your employer must have acted in such a manner that they have effectively destroyed the basis of the employment relationship therefore entitling you to resign from your contract with immediate effect. It is not sufficient that your employer has acted 'unreasonably'.
A contract of employment can include both express (terms set out in a written or verbal agreement) and implied (terms implied by law even if not set out in a written or verbal agreement) contractual terms. Many constructive dismissal claims are brought on the basis that the employer has breached one of the important implied terms of the contract which are usually:
- Duty of mutual trust and confidence
- Duty not to treat an employee in an arbitrary, capricious or inequitable manner
- Duty to take reasonable care of the employee’s health and safety
You must act quickly if you believe that your employer has fundamentally breached your contract of employment. If you do not leave quickly after the incident(s) you intend to rely upon then it is likely that your employer will argue that you have accepted the treatment and breach of contract by not acting immediately. In these circumstances a constructive unfair dismissal will not have occurred.
Who can claim constructive unfair dismissal?
You can bring a claim for constructive unfair dismissal in the employment tribunal if you satisfy the following requirements:
- You have been continuously employed for a period of 2 years prior to the date of your resignation; and
- You have resigned soon after and in response to a 'fundamental' breach of your contract of employment by your employer
Constructive unfair dismissal claims are often difficult to prove and it is common for the employer to argue that the employee resigned of their own accord and that no dismissal took place. Therefore you must always think carefully before resigning from your employment as it is a difficult decision that only you, and no-one else, can make.
Constructive dismissal - case study
Mrs Morrow worked in a supermarket as a bakery production controller. She had a poor working relationship with her store manager, and she felt that he continually harassed her. In one particular shift, he gave her a telling off in front of other employees and customers of the store, telling her “if you cannot do the job I pay you to do, then I will get someone who can.” Two hours later, he did this again. Mrs Morrow was extremely distressed at this treatment and resigned from her position. She took her claim of constructive unfair dismissal to the employment tribunal, who found that public criticism from her manager was a breach of the implied duty of mutual trust and confidence. However, they found that this was not so serious as to entitle her to resign. Mrs Morrow appealed this finding, and at the employment appeals tribunal they concluded that where an employer breaches a duty of mutual trust and confidence, the breach is 'inevitably' fundamental and goes to the root of the employment contract, entitling the employee to resign and claim constructive unfair dismissal.
What should I do next?
If you feel that you have been forced to resign by your employer, our specialists will be happy to discuss your case with you. We appreciate that this is often a difficult time and offer a range of funding options available to help. In some circumstances we may be able to offer a ‘no win no fee arrangement’ to you.
Please call us on 0203 816 9302 or complete our online enquiry form and we will be happy to discuss your options and guide you through the process.