You may have heard the term “constructive dismissal” and wondered what it meant.
I accept the terminology is a little unusual. It sounds like something that happens to a builder when he is laid off.
Or perhaps, like the term “constructive criticism”, it refers to a dismissal was helpful in some way?
As plausible as those meanings may seem, the sense of the term as it is used in employment law is quite different.
What is “constructive” about it then? And when can you claim you have been dismissed “constructively”?
WHAT “CONSTRUCTIVE” MEANS
It may surprise you that a “constructive dismissal” does not begin with a dismissal at all.
Instead, it starts when an employee resigns.
Let me explain.
Sometimes an employee will resign and say their resignation was in some way forced by their employer.
In those cases, it would be unfair to blame the employee for the way the employment ended.
Nevertheless, in order to blame the employer for the way things went, the resignation must be construed as being, in effect, a dismissal.
In other words, a dismissal is constructed out of the events that led up to, and ended with, the employee’s resignation.
In that sense then, the dismissal is constructive.
WHEN CAN A RESIGNATION BE A DISMISSAL?
There are at least three situations where it has been accepted that a resignation may in truth be a form of dismissal because the employer forced the employee’s hand.
Those three situations are where:
- An employer gives an employee a choice between resigning and being dismissed.
- An employer follows a course of conduct with a deliberate and dominant purpose of coercing an employee to resign.
- An employer breaches a duty that they owe to the employee, which is so bad that it causes the employee to resign – even if the employer did not intend for the employee to leave.
Theses are not the only categories available – there may be others. But most cases concern the third category, which can include situations where the employer:
- is abusive or violent towards the employee; or
- simply neglects to keep the employee safe.
WHO HAS THE BURDEN OF PROOF?
Normally, if an employer dismisses an employee, the onus is on the employer to demonstrate that their decision to dismiss was what a fair and reasonable employer could do in the circumstances.
The tables are turned, however, if you claim you were constructively dismissed.
In those cases, you, not the employer, must prove that you had no option but to resign as a result of the employer’s actions.
That can make it harder for you to prove that you were unjustifiably dismissed, because the onus falls on you to prove your case.
SO SHOULD YOU RESIGN?
Given that a claim of constructive dismissal is harder to prove for you as the employee, you need to think very carefully about whether to resign in the face of bad treatment by your employer.
First, consider whether you fall into one of the three categories mentioned above.
The clearest category is the first one, where your employer gives you an ultimatum, while the other two categories need to be backed up by some clear evidence of bad treatment.
Here are some things to keep in mind if you think your employer has treated you badly:
- Just because your employer does something that makes you unhappy, that won’t be enough to resign and claim you were pushed. The treatment you have suffered at your employer’s hands must be so intolerable that it would be foreseeable that you would leave.
- If you were intending to leave anyway for some other reason, it is unlikely that you can then claim that the only reason you left was because of what the employer did.
- If you are resigning because you are about to go through disciplinary proceedings, that is unlikely to be a ground to claim constructive dismissal. A disciplinary proceeding in itself is not necessarily poor treatment, as it may in fact be something an employer needs to do when faced with an allegation of misconduct.
QUESTIONS TO ASK YOURSELF BEFORE RESIGNING
Before resigning, ask yourself these questions:
- Is there really no reasonable possibility that I can go back into the workplace?
- Have I exhausted all possible avenues of resolving the matter without resigning?
- Do I have good evidence of what I claim to be bad treatment?
If you can answer yes to all three questions, then you may have good grounds to resign and claim you have been constructively dismissed.
Looked at one way, constructive dismissal is not a situation where the employee is dismissed at all – because it must start with a resignation.
That changes things, because the onus rests on you as the employee to show that you had reason to leave.
You should think very carefully before resigning in the face of poor treatment from your boss. Get legal advice. Check your thinking. Don’t jump to conclusions.