Q&A What is ‘Constructive Unfair Dismissal’?

Q:      I manage a local workshop for a national company. Due to the financial climate, they’ve refused to replace two staff who left, so I have to be in the workshop as well as managing admin. This means I’ve had to work late to do paperwork, and if I’m under a car when customers ring I cannot answer the phone. There is no answering service, just a message saying we are busy and to try later. As a result, we have lost business and now I am being threatened with losing my job if business doesn’t pick up. My GP has signed me off with PTSD from the stress. I’ve explained to the company why, but they just said plenty would like my job if I cannot cope. Could this be construed as constructive dismissal?

A:       If your employer has failed to protect your mental health or has made your working conditions intolerable, to the extent that their conduct amounts to a fundamental breach of your employment contract, you may have grounds to claim Constructive Unfair Dismissal if you feel forced to resign as a result and have the required length of service.

In legal terms, your employer’s conduct would need to be viewed as a ‘fundamental’ (or ‘repudiatory’) breach of contract, which may entitle you to treat yourself as having been dismissed. In simple terms, your employer’s actions have been ‘constructive’ in causing you to resign, which is the ‘dismissal’ part, and the situation created by your employer may be considered ‘unfair’.

To bring a claim, you would usually need to show evidence of the employer’s conduct and how it affected you, which could include medical evidence linking stress or illness to your workplace situation, and records showing that you raised your concerns with your employer, for example through management or HR. You would normally need to have resigned in response to the alleged breach, and a claim to an employment tribunal must usually be started within three months less one day of your employment having ended (subject to the requirement to first notify ACAS for Early Conciliation). Seeking early legal advice could increase your chances of success.

This question has been answered by James Denton, a Solicitor with GHP Legal.  If you would like to speak to someone about this or any other legal matter, please visit our website www.ghplegal.com and use the contact us form, or call us on: Wrexham 01978 291456, Llangollen 01978 860313, Oswestry 01691 659194