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You may have heard someone who is having a  very hard time at work saying they feel like making a claim for constructive dismissal’’.

What exactly does this mean?

There are three types of dismissal, the third of which is when  the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.’

That’s quite a mouthful.  You can see why the snappier phrase,  ‘constructive dismissal ’  became popular!

It is a complicated area of law and you should always consider getting legal advice before taking any steps. Even to use the phrases  ‘constructive dismissal’  or ‘constructively dismissed’  could lead your employer to believe you have resigned  – which may not be your intention.

In a constructive dismissal situation it is the employee who takes the initiative and ends the contract by resigning.  An employer will often be in denial that anything so bad has happened to bring about such a situation.

So, exactly how bad does it have to be before an employee is entitled to claim they have been ‘constructively dismissed’?   The answer is, very bad.  It has to be a fundamental  breach of contract. This means that it has to be something that wrecks the contract of employment and makes it unworkable. It goes beyond a grievance.

The key thing is that the contract is no longer workable because of an employer’s fundamental breach.

Once a fundamental breach has occurred, an employee must not delay in reacting to it. Otherwise, they may be seen to have accepted the breach and carried on working.

It is also necessary that the resignation is because of the breach and not for some other reason, such as another job offer.

As with all unfair dismissal claims, the initial steps must be taken by the employee within three months of the resignation/dismissal, or a claim will be out of time.

It is important to get advice quickly. There may be only a short period of time in which to act. A delay of only a few days can be fatal to a possible constructive dismissal claim.

By Mike Robinson, employment solicitor.